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THE  LIBRARY  OF  THE 

UNIVERSITY  OF 

NORTH  CAROLINA 


THE  COLLECTION  OF 
NORTH  CAROUNMNA 


CB 
J66hl 


This  book  must  not 
be  taken  from  the 
Library  building. 


DECISIVE 
BATTLES  OF  THE  LAW 


NARRATIVE  STUDIES  OF  EIGHT  LEGAL  CONTESTS 

AFFECTING  THE  HISTORY  OF  THE  UNITED 

STATES    BETWEEN    THE    YEARS 

1800    AND    1886 


BY 

Frederick  Trevor  Hill 

AUTHOR   OF 

"LINCOLN    THE    LAWViiR "    "THE   ACCOMPLICE" 

"the  case  and   exceptions"   ETC. 


NEW  YORK  AND  LONDON 

Harper  &  Brothers   Publishers 

MCMVII 


Copyright,  1906, 1907,  by  Harper  &  Brothers. 


All  rights  reserved. 

Published  October,  1907. 


:r^^^' 


TO 
CAROLINE  COE 


CONTENTS 


PAGE 

the  united  states  vs.  callenderi  a  fight  for  free- 
dom of  the  press i 

the  united  states  vs.  burr:  the  inside  history  op  a 

"scotch"  verdict 27 

the   commonwealth  vs.   brown  i  the   prelude  to  the 

civil  war 65 

dred  scott  vs.  sanfordi  the  uncovering  of  an  his- 
toric trial 107 

thfi    impeachment    of    andrew    johnson  i    a    historic 

moot  case 135 

the  "alabama"  arbitration  i  an  international  law- 
SUIT          175 

THE     HAYES-TILDEN     CONTEST!     A     POLITICAL     ARBITRATION       212 

PEOPLE  VS.  SPIES  et  al.:  the  Chicago  anarchists'  case     240 


FOREWORD  AND  ACKNOWLEDGMENT 

IT  is  a  recognized  fact  that  great  legal  con- 
tests have  not  infrequently  foreshadowed 
national  crises  in  the  United  States,  and  some- 
times even  determined  them.  Certainly  the 
records  of  the  courts  afford  most  illuminating 
foot-notes  to  history,  often  revealing  the  politi- 
cal and  human  forces  at  work  upon  events  in 
more  dramatic  and  vivid  guise  than  any  other 
medium.  Something  of  their  significance  is 
lost,  however,  in  the  dull,  official  form  of  a  law 
report.  No  such  account  of  a  trial  can  convey 
any  suggestion  of  the  surroundings  or  attendant 
circumstances  that  give  life,  character,  color, 
and  meaning  to  the  proceedings.  To  be  appre- 
ciated at  its  full  historic  value,  the  scene  must 
be  vitalized  and  peopled  with  the  human  beings 
that  dominated  it.  The  judge,  the  jury,  the 
witnesses,  the  lawyers,  the  laymen— all  the  court- 
room crowd  must  be  seen  in  action,  moulding  the 
event,  and  the  listening  spectator  must  be  so 

vii 


FOREWORD  AND  ACKNOWLEDGMENT 

in  touch  with  the  history  and  spirit  of  the  times 
as  to  understand  every  move  of  the  dramatis 
personcE. 

It  is  to  approximate  this  effect  that  these 
narrative  studies  have  been  undertaken. 

The  writer  gratefully  acknowledges  his  in- 
debtedness to  all  the  historians  and  biographers 
whose  researches  have  aided  him  in  accurately 
reproducing  the  scenes  herein  depicted. 

For  valuable  infomiation  concerning  the  trial 
of  John  Brown,  he  begs  to  thank  Messrs.  Thomas 
H.  Botts  and  Thomas  C.  Green  (sons  of  the  coun- 
sel who  conducted  the  defence),  as  well  as  Dr. 
W.  P.  McGuire,  executor  of  Judge  Parker,  who 
presided  at  the  trial,  and  Mr.  Frank  B.  Sanborn, 
Brown's  intimate  friend  and  biographer. 

He  is  likewise  greatly  indebted  to  Messrs. 
Brooks  Adams,  Frank  W.  Hackett,  and  the 
Honorable  J.  C.  Bancroft  Davis,  the  only  sur- 
viving representatives  of  the  United  States  at 
the  Geneva  arbitration,  for  information  con- 
cerning the  Alabama  case;  and  to  the  Honor- 
able Elihu  Root  and  the  officials  of  the  State 
Department  for  access  to  the  official  records  in 
Washington,  concerning  the  same. 

To  Captain  William  P.  Black  and  Messrs.  Sig- 
viii 


FOREWORD  AND  ACKNOWLEDGMENT 

mund  Zeisler  and  William  A.  Foster,  of  counsel 
for  the  Chicago  anarchists,  and  Francis  W. 
Walker,  the  last  surviving  member  of  the  prose- 
cutor's staff,  he  desires  to  express  his  thanks  for 
material  assistance  in  presenting  the  court-room 
scene  in  the  People  vs.  Spies. 

He  also  takes  pleasure  in  recording  his  appre- 
ciation of  the  efficient  assistance  of  the  late  Miss 
Mary  Louise  Dalton,  Librarian  of  the  Missouri 
Historical  Society,  in  facilitating  the  original 
investigations  which  form  the  basis  of  the  arti- 
cle on  the  Dred  Scott  case,  and  the  co-operation 
of  Montgomery  Blair,  Esq.,  who  courteously 
loaned  to  the  writer  unpublished  autograph  let- 
ters bearing  upon  his  father's  share  in  that 
famous  litigation. 

For  this  generous,  expert  assistance  in  pre- 
paring the  volume  for  the  press,  the  writer  is, 
on  this  as  on  many  other  occasions,  deeply 
indebted  to  Mr.  Samuel  Palmer  Griffin. 


DECISIVE 
BATTLES  OF  THE  LAW 


DECISIVE 
BATTLES   OF  THE  LAW 


THE     UNITED     STATES    VS.    CALLENDER: 
A     FIGHT     FOR     FREEDOM     OF     THE     PRESS 

EARLY  in  the  morning  of  June  3,  1800,  a 
number  of  horsemen  could  be  seen  strag- 
gling along  the  rough  country  roads  towards 
Richmond,  each  encircled  in  a  little  cloud  of 
dust.  Here  and  there  the  riders  joined  forces, 
jogging  together  past  the  scattered  plantations 
on  to  the  outskirts  of  the  town,  and  then  thread- 
ing their  way  more  carefully  through  the  narrow, 
ill-made  streets  of  the  capital,  until  they  reached 
the  Common,  whose  deep  ravines,  covered  with 
stunted  pines,  necessitated  a  still  more  cautious 
approach. 

All  the  travellers  were  evidently  bent  upon 


DECISIVE   BATTLES  OF  THE  LAW 

the  same  errand,  for  they  halted  at  a  building 
before  which  a  dozen  or  more  men  were  already 
assembled,  and,  having  dismounted  and  tied 
their  horses  to  the  hitching-rails,  mingled  with 
the  earlier  arrivals.  It  was  a  picturesque  gath- 
ering of  Virginians  that  awaited  the  opening  of 
the  United  States  Circuit  Court  on  that  summer 
morning,  for  the  ugly  fashions  of  the  French 
Revolution  had  not  as  yet  found  much  favor 
in  the  Old  Dominion,  and  knee-breeches,  low 
shoes,  buckles,  buttons,  and  queues  tied  with 
ribbons  were  still  in  vogue.  And  yet  it  was  not 
their  dress,  but  their  faces  and  bearing,  which 
particularly  distinguished  these  gentlemen  as 
they  stood  talking  with  one  another  under  the 
wide-spreading  trees  at  the  edge  of  the  public 
square.  Many  of  them  were  clothed  like  Eng- 
lish farmers,  but  they  wore  their  dusty  garments 
with  an  unmistakable  air  of  distinction,  and 
their  clean-shaven,  clear-cut  features  bespoke 
dignity  and  intelligence.  The  centre  of  one 
group  was  especially  notable,  his  strong  and 
somewhat  stem  face  indicating  character  in 
every  line,  and  the  ease  with  which  he  held  his 
auditors  singled  him  out  as  a  master  of  men. 
This  was  John  Marshall,  diplomat  and  jurist, 
and  soon  to  become  the  official  chief  of  the  hated 


THE  UNITED  STATES  vs.   CALLENDER 

judge  whose  official  programme  was  summoning 
all  the  country-side.  In  another  group  near 
Marshall  stood  a  handsome,  neatly  dressed  man 
about  thirty  years  of  age,  tall,  well-formed,  and 
graceful,  with  a  hearty  laugh  and  a  confident 
manner  that  seemed  to  fascinate  those  about 
him,  particularly  one  keen,  boyish-looking  lis- 
tener who  hung  upon  his  every  word,  for  William 
Wirt  was  already  the  beau-ideal  of  the  junior 
bar,  and  Philip  Nicholas  had  reason  to  felicitate 
himself  on  being  associated  with  such  a  rising 
young  advocate.  In  this  same  group  stood 
George  Hay,  soon  to  become  one  of  the  best- 
known  lawyers  in  the  country,  and  beside  him 
stood  the  distinguished  leader  of  the  Virginia 
bar,  Edmund  Randolph. 

All  these  men  were  to  meet  again  at  the  same 
place  under  very  different  conditions  to  conduct 
one  of  the  most  famous  trials  in  American  his- 
tory, but  for  the  time  being  all  professional  and 
political  differences  were  merged  in  their  loyalty 
to  the  Virginia  bar,  whose  dignity  and  influence 
bade  fair  to  be  seriously  affected  in  the  trial  of 
James  Thompson  Callender  for  seditious  libel 
against  the  President  of  the  United  States. 
There  was  no  wide-spread  popular  sympathy 
with  this  editor  of  the  Richmond  Examiner,  and 


DECISIVE   BATTLES  OF  THE   LAW 

no  particiolar  interest  among  the  best  citizens 
concerning  his  individual  fate.  He  was  a  brill- 
iant, drunken,  fearless,  mercenary  product  of 
Grub  Street,  whose  scurrilous  pen  was  at  the 
service  of  the  highest  bidder  and  whose  libels 
were  produced  to  order.  In  such  a  hireling 
neither  patron  nor  opponent  could  manifest  any 
very  deep  concern.  He  received  his  price  and 
took  his  chances,  and  under  ordinary  circum- 
stances no  one  would  probably  have  raised  a 
finger  in  his  behalf.  The  circumstances,  how- 
ever, were  not  ordinary,  but  most  extraordinary, 
for  the  law  invoked  against  Callender  for  the 
publication  of  his  libelous  pamphlet,  "  The  Pros- 
pect Before  Us,"  was  the  odious  Sedition  Act, 
the  passage  of  which  (together  with  the  Alien 
Law)  had  aroused  such  deep  resentment  through- 
out the  country  that  Kentucky  had  protested 
in  a  set  of  defiant  resolutions,  declaring  it  null 
and  void  within  her  borders  and  inviting  the 
other  States  to  join  her  in  seceding  from  the 
Union.  This  invitation  had  met  with  a  decided 
rebuff  from  all  the  legislatures  addressed  save 
that  of  Virginia,  which  had  responded  with 
another  set  of  resolutions  expressing  devoted 
attachment  to  the  Union,  but  heartily  joining 
in  Kentucky's  condemnation  of  the  law  as  a 

4 


THE   UNITED  STATES  vs.   CALLENDER 

dangerous  menace  to  the  freedom  of  the  press 
and  an  outrageous  breach  of  the  Hberties  guar- 
anteed by  the  Constitution. 

Under  the  provisions  of  this  law,  any  one  who 
wrote,  printed,  uttered,  or  pubHshed  any  false, 
scandalous,  or  malicious  matter  against  the 
government,  the  Congress,  or  the  President  of 
the  United  States,  or  which  tended  to  bring 
them  into  hatred  or  contempt,  could  be  punished 
by  heavy  fines  and  imprisonment,  and  the  stat- 
ute was  so  worded  as  to  penalize,  not  only  honest 
criticism  of  the  Executive,  but  even  the  free 
expression  of  opinion.  No  legislation  more  fa- 
tal to  the  popularity  of  Adams's  administra- 
tion could  possibly  have  been  devised;  but  al- 
though the  sole  responsibility  for  its  enactment 
has  frequently  been  charged  to  the  President, 
it  cannot  justly  be  laid  at  his  door.  His  fussy, 
sensitive,  conscientious,  crotchety,  tactless  nat- 
ure had  doubtless  been  more  stung  by  the 
lampoons  and  critical  attacks  of  the  pam- 
phlets and  newspapers  than  that  of  any  other 
official,  but  the  abuse  of  the  press  had  been 
so  general  that  scarcely  a  man  in  public  life 
had  escaped  defamation,  and  the  Act  had 
been  rushed  through  both  houses  of  Con- 
gress  by  a  vote   which   distinctly   stamped  it 

S 


DECISIVE   BATTLES  OF  THE   LAW 

with  the  approval  of  the  whole  administration 
party. 

That  this  was  the  first  law  passed  by  the 
national  legislature  against  the  freedom  of  the 
press,  and  that  its  enforcement  in  Virginia 
threatened  to  provoke  a  conflict  between  the 
state  and  the  Federal  authorities,  possibly  in- 
volving the  stability  of  the  Union,  was  quite 
sufficient  to  arouse  unprecedented  interest  in 
Callender's  case,  for  these  facts  indicated  a  cause 
of  vital  importance,  which  bade  fair  to  result  in 
the  first  State  trial  upon  record  in  the  Common- 
wealth. Nevertheless,  it  w^as  not  these  momen- 
tous issues  that  attracted  the  majority  of  the 
legal  profession,  but  rather  the  personality  of 
the  judge  who  proposed  to  try  the  case,  for 
His  Honor  was  probably  the  most  violent,  the 
most  feared  and  best-hated  partisan  who  ever 
sat  upon  the  Federal  bench. 

It  was  not  in  his  judicial  capacity  alone  that 
Samuel  Chase  had  earned  his  reputation.  For 
years  he  had  been  known  as  a  pugnacious  lawyer 
and  politician  who  sought  quarrels  and  delighted 
in  them.  Indeed,  his  entire  career  had  been 
marked  by  such  intemperance  of  word  and  ac- 
tion that  he  seemed  "  to  move  perpetually  with 
a  mob  at  his  heels,"  which  sometimes  pursued 

6 


THE   UNITED   STATES  vs.   CALLENDER 

but  quite  as  often  followed  him.  In  the  stirring 
days  preceding  the  Revolution  he  had  been  one 
of  the  ''  Sons  of  Liberty  "  who  had  attacked  the 
public  offices  of  Baltimore  during  the  Stamp 
Act,  and  later  he  and  his  band  had  actually 
compelled  a  group  of  old  malcontents,  includ- 
ing his  own  father,  to  take  the  oath  of  allegiance 
to  the  Continental  Congress.  Nor  were  these 
the  only  manifestations  of  such  playfulness 
credited  to  his  account,  for  when  certain  Penn- 
sylvanian  Quakers  had  refused  to  illuminate 
their  houses  in  honor  of  a  Revolutionary  suc- 
cess, he  had  swooped  upon  the  offending  citi- 
zens with  his  followers,  bundled  them  into  carts, 
and  deported  them  in  the  depth  of  winter  to 
Virginia,  where  they  were  unceremoniously  de- 
posited and  left  to  shift  for  themselves. 

All  this  youthful  boisterousness,  however, 
would  probably  have  been  attributed  to  exu- 
berant vitaHty  and  misdirected  zeal  had  not  his 
conduct  as  a  member  of  the  Maryland  Colonial 
Legislature  and  the  Continental  Congress  been 
almost  equally  turbulent  and  provocative  of  riot. 
The  man  was,  however,  an  incorrigible  bully,  with 
a  genius  for  offence,  and  when  at  the  close  of  the 
war  he  found  himself  a  member  of  the  Mary- 
land House  of  Delegates,  he  straightway  became 

7 


DECISIVE   BATTLES  OF  THE  LAW 

involved  in  political  broils  which  resulted  in  an 
attempt  at  his  impeachment.  But  here  his 
fighting  qualities  stood  him  in  good  stead,  for 
he  not  only  fought  his  enemies  to  a  stand-still, 
but  had  himself  rewarded,  first  with  the  Chief- 
Justiceship  of  the  Criminal  Court  of  Baltimore, 
and  then  with  the  Chief -Justiceship  of  the  Gen- 
eral Court,  both  of  which  offices  he  tenaciously 
held  and  administered  in  flagrant  defiance  of 
the  law,  until  his  action  was  officially  declared 
unconstitutional.  Nevertheless,  his  name  was 
writ  large  in  the  Declaration  of  Independence, 
his  personal  honesty,  courage,  and  patriotism 
were  unquestioned,  and  though  he  had  at  first  op- 
posed the  Constitution,  he  had  become  in  course 
of  time  the  most  ardent  of  Federal  enthusiasts. 

Such  was  the  man  whom  Washington  had 
appointed  to  the  Federal  bench  in  1796,  and 
there  was  to  be  nothing  in  his  conduct  of  that 
offixce  to  belie  his  previous  record.  Domineer- 
ing, fearless,  vain,  confident,  and  honest,  he  had 
many  of  the  qualities  necessar}^  to  establish  the 
authority  of  the  new  court,  but  no  one  did  more 
than  he  to  make  his  tribunal  obnoxious  to  the 
bar.  W^ith  a  good  classical  education  and  con- 
siderable experience  and  ability  as  a  lawyer,  he 
had  the  majority  of  the  attorneys  who  practised 

8 


THE   UNITED  STATES  vs.   CALLENDER 

before  him  at  a  distinct  disadvantage,  and  those 
whom  he  could  not  unhorse  with  legal  learning 
he  cowed  and  silenced  with  jocular  or  brutal 
tyranny,  as  best  suited  his  humor.  But  per- 
haps his  gravest  offence  was  his  political  activity, 
with  which  he  never  allowed  his  judicial  duties 
to  interfere,  and  he  had  not  been  long  upon  the 
circuit  before  angry  outcries  were  raised  against 
his  aggressive  Federal  partisanship.  Opposi- 
tion of  this  character,  however,  merely  excited 
his  belligerency,  and  he  never  made  the  slightest 
effort  to  conceal  his  political  opinions,  either  on 
or  off  the  bench.  Indeed,  when  the  Sedition 
Act  became  a  law,  he  had  openly  rejoiced  at  the 
opportunity  it  afforded  for  silencing  critics  of 
the  administration,  and  his  actions  were  soon  to 
speak  louder  than  words.  During  the  trial  of 
Fries,  his  arbitrary  rulings  practically  forced 
the  prisoner's  counsel  to  retire  from  the  case  in 
disgust,  and  when  Thomas  Cooper,  member  of 
the  Pennsylvania  bar,  convicted  of  libeling  the 
President,  was  arraigned  for  sentence,  he  an- 
nounced in  open  court  that  if  he  could  discover 
that  the  Democratic  party  was  behind  the  pris- 
oner he  would  inflict  the  severest  penalties 
known  to  the  law. 

It  is  not  surprising,  therefore,  that  the  most 

9 


DECISIVE   BATTLES   OF  THE   LAW 

alarming  rumors  of  this  judicial  tyrant's  pro- 
gramme for  Virginia  found  willing  ears  in  Rich- 
mond when  he  descended  upon  the  town  with 
Luther  Martin's  marked  copy  of  "The  Prospect 
Before  Us  "  in  his  avenging  hand.  That  he  had 
publicly  exhibited  this  libelous  pamphlet  to  va- 
rious persons  and  expressed  his  determination 
to  punish  its  author  was  a  matter  of  common 
knowledge,  but  the  story  that  he  had  instructed 
the  marshal  to  see  that  ''none  of  those  creatures 
called  Democrats  "  was  summoned  on  the  grand 
jury  found  quite  as  many  believers.  Moreover, 
rumor  had  it  that  on  being  informed  that  the 
leaders  of  the  Richmond  bar  had  volunteered  to 
appear  for  Callender  and  test  the  constitution- 
ality of  the  law,  he  had  retorted,  with  a  coarse 
laugh,  that  he'd  put  the  whole  lot  of  them  over 
his  knee  and  teach  them  and  all  such  nullifiers 
a  lesson  they  would  not  soon  forget,  and  it  must 
be  confessed  that  the  thought  of  the  learned 
profession  in  this  undignified  posture  appealed 
to  the  popular  humor  and  lent  an  added  signifi- 
cance to  "The  Prospect  Before  Us." 

The  threatened  clash  between  the  bench  and 
bar  was,  of  course,  particularly  interesting  to 
lawyers,  but  there  were  many  laymen  among 
those  gathered  before  the  court-house  on  the 

lO 


THE   UNITED   STATES  vs.   CALLENDER 

morning  of  the  trial,  for  the  country  was  thor- 
oughly aroused  over  the  attempt  to  enforce  the 
Sedition  Law  within  a  State  whose  legislature 
had  officially  condemned  it,  and  the  conflict 
between  the  Federal  and  State  authorities  was 
far  more  important  to  the  average  Virginian 
than  the  settlement  of  any  professional  differ- 
ences. Not  all  the  horsemen  who  came  trailing 
across  the  Common  were  present  from  choice, 
however,  for  the  marshal  had  invaded  the  most 
distant  plantations  in  his  search  for  jurors,  and 
some  of  the  victims  had  ridden  ten,  fifteen,  and 
even  twenty  miles  in  obedience  to  his  summons, 
spreading  the  news  of  the  impending  event 
through  the  outlying  districts  until  the  rapidly 
gathering  crowd  promised  to  surpass  that  of 
any  previous  court  day  in  Richmond.  Never- 
theless, no  one  of  the  waiting  throng  seemed  to 
be  in  any  haste  to  move  in-doors,  and  jurors, 
witnesses,  spectators,  and  lawyers  remained 
clustered  about  the  entrance  or  scattered  along 
the  edge  of  the  Common,  discussing  the  case 
until  nearly  ten  o'clock,  when  they  slowly  moved 
towards  the  scene  of  action,  and  a  few  minutes 
later  filled  the  court-room  to  overflowing. 

At  a  table  beside  the  judicial  desk  sat  William 
Marshall,  clerk  of  the  court  and  brother  of  the 


DECISIVE   BATTLES  OF  THE  LAW 

future  Chief -Justice,  and  near  him  stood  Mr.  Nel- 
son, the  District  Attorney,  with  David  Robert- 
son, the  short-hand  reporter,  whose  notes  were 
to  prove  an  invaluable  exhibit  in  the  subsequent 
impeachment  of  the  judge.  The  attention  of 
the  audience,  however,  was  mainly  directed  to 
the  prisoner,  his  bondsman,  Meriwether  Jones, 
and  his  counsel,  Messrs.  Hay,  Wirt,  and  Nich- 
olas, a  formidable  array  for  any  hostile  judge, 
and  a  trio  with  whom  the  bar  of  Richmond  were 
well  content  to  trust  their  dignity  and  honor. 
Indeed,  these  champions  had  already  given 
Chase  a  taste  of  their  quality  by  virtually  forcing 
him  to  grant  adjournments  on  two  previous 
occasions,  and  it  was  whispered  that  they  intend- 
ed to  manoeuvre  him  out  of  the  case  altogether 
by  continuing  their  dilatory  tactics  until  the 
term  expired.  In  fact,  the  word  passed  from 
lip  to  lip  across  the  crowded  chamber  that  the 
judge  had  walked  into  a  very  neat  trap  at  the 
last  hearing  by  granting  an  adjournment  to 
procure  the  attendance  of  a  certain  witness 
named  Giles.  This,  it  was  claimed,  was  a  fatal 
concession,  for  if  the  non-appearance  of  this 
witness  justified  a  postponement  on  Monday, 
it  equally  demanded  it  on  Tuesday,  for  he  was 
still  missing,  and  the  case  could  not  therefore 

12 


THE   UNITED  STATES  vs.   CALLENDER 

be  tried  until  he  was  produced,  which  would  be 
the  day  after  never. 

The  audience  chuckled  approvingly  as  this 
story  went  the  rounds,  gleefully  anticipating  the 
discomfiture  of  the  judge,  and  the  general  opin- 
ion was  that,  for  once,  at  least.  Chase  had  met  his 
match— a  result  particularly  agreeable  to  local 
pride.  Judicial  tyrants  might  bully  and  awe  the 
Pennsylvania  or  Maryland  bar,  but  the  profession 
in  Virginia  knew  a  trick  of  two  which  would — 

The  chatter  and  laughter  suddenly  ceased  as 
the  door  opened,  disclosing  the  not  too  heroic 
figure  of  the  District  Judge,  Cyrus  Griffin,  a 
rather  futile,  colorless,  and  timid  personage, 
who  appeared  to  be  propelled  into  the  room  by  a 
burly,  bustling,  red-faced  man  who  strode  rapid- 
ly to  the  bench,  nodding  an  ungracious  saluta- 
tion at  the  assemblage,  while  the  court  crier 
bellowed  his  famiHar  announcement. 

The  individual  whose  arrival  had  had  the 
effect  of  a  school-master  entering  a  noisy  class- 
room was  a  man  of  about  sixty  years  of  age, 
huge  of  bulk,  coarse  of  feature,  masterful  in 
manner.  On  his  massive  head  sat  an  ill-made 
wig,  and  his  garments  were  those  of  the  ordinary 
citizen  with  no  particular  regard  for  appear- 
ances, but  there  was  no  mistaking  his  authorita- 

13 


DECISIVE   BATTLES  OF  THE   LAW 

tive  bearing  as  he  loomed  up  behind  the  judicial 
desk  and  glowered  at  the  silent  audience.  To 
most  of  those  who  returned  his  scrutiny  he  was 
an  entire  stranger,  for  until  the  present  term  of 
the  court  he  had  never  set  foot  in  Richmond, 
and  doubtless  many  of  the  spectators  were  pre- 
pared to  find  him  a  fiend  in  human  shape.  But 
though  his  expression  was  somewhat  forbidding, 
his  large,  strong,  clean-shaven  face  was  not  un- 
comely, and  his  giant  frame  suggested  strength 
rather  than  brutality.  Nevertheless,  his  small, 
snappy,  shifty  eyes  had  a  dangerous  glint,  and 
there  were  ominous  lines  about  the  comers  of 
his  mouth,  betraying  possibilities  of  an  ugly 
droop,  and  other  indications  of  a  quari'elsome 
disposition  were  not  wanting.  The  whole  as- 
pect of  the  man,  however,  suggested  energy  and 
determination,  rather  than  intellectual  power, 
and,  contrasted  with  the  group  of  lawyers  who 
faced  him,  he  appeared  at  a  disadvantage.  But 
the  moment  the  proceedings  opened  this  im- 
pression faded,  and  as  he  leaned  over  the 
desk  and  listened  to  Mr.  Hay's  long  and  not 
too  ingenious  plea  for  an  adjournment,  his 
gaze  was  so  uncomfortably  intelligent  that  the 
speaker,  obviously  embarrassed,  made  poor 
work   of  his  argument.     Still,  no  interruption 

14 


THE   UNITED   STATES  vs.   CALLENDER 

reached  him  from  the  bench,  and,  growing  more 
confident,  the  advocate  began  to  shift  away 
from  the  question  of  the  missing  witness, 
craftily  turning  the  discussion  towards  the 
constitutionaUty  of  the  Sedition  Act.  Then 
he  circled  back  to  the  witness  whose  testimony 
he  boldly  asserted  would  help  to  determine 
whether  Callender's  pamphlet  consisted  of  li- 
belous statements  or  merely  matters  of  opinion, 
which  question  he  declared  would  have  to  be 
considered  by  the  jury  in  assessing  the  fine. 

''That's  a  wild  notion!  It's  not  the  law. 
The  jury  have  nothing  to  do  with  assessing  the 
fine,  sir!" 

If  some  one  had  suddenly  dashed  water  in 
Hay's  face  he  could  scared}^  have  been  more 
astonished.  To  be  flatly  contradicted  on  a 
legal  question  was  ruffling  enough  to  a  man  of 
his  dignity,  but  to  have  his  opinion  derided  as 
a  wild  notion  was  too  insulting  for  words,  and 
some  moments  elapsed  before  he  recovered  him- 
self sufficiently  to  retort.  Then  he  announced 
with  dignified  severity  that  it  was  possible  to 
answer  argument,  but  quite  impossible  to  refute 
atUhority.  If  he  were  permitted  to  proceed, 
however — 

But  he  was  not  permitted  to  proceed.     A  blow 

IS 


DECISIVE   BATTLES  OF  THE   LAW 

had  been  given  and  returned,  and  the  battle  was 
now  for  the  strong.  His  Honor  did  not  propose 
to  listen  to  any  arguments  regarding  the  consti- 
tutionality of  the  law,  and  if  the  counsel  imagined 
that  the  court  was  bound  to  keep  on  granting 
adjournments  until  the  missing  witness,  Giles, 
was  produced,  he  was  mightily  mistaken.  In 
the  court's  opinion,  if  the  trial  had  to  await  that 
gentleman's  appearance,  it  would  never  take 
place  at  all.  There  had  been  ample  opportunity 
to  compel  his  attendance.  Let  the  jury  be  im- 
panelled at  once! 

Startled  and  chagrined  as  the  counsel  were 
by  this  unexpected  turn  of  affairs,  which  com- 
pletely upset  their  well-laid  plans,  they  were 
still  more  disconcerted  by  the  overbearing  man- 
ner and  tone  which  had  been  adopted  towards 
them,  and,  tingling  with  resentment,  they  an- 
nounced that  since  His  Honor  saw  fit  to  force 
an  immediate  trial  upon  them,  it  would  be  their 
duty  to  take  advantage  of  every  technicality 
known  to  the  law,  which,  to  a  man  of  Chase's 
temperament,  was  nothing  more  or  less  than  an 
open  declaration  of  war.  Indeed,  the  very  next 
move  demonstrated  the  tactlessness  of  such  a 
defiance,  for  the  moment  young  Nicholas  ad- 
vanced  a   formidable   challenge   to   the   entire 

i6 


THE   UNITED  STATES  z.5.   CALLENDER 

panel  of  jurors,  which,  despite  the  extraordinary 
exertions  of  the  marshal,  comprised  only  eight 
candidates,  he  was  flouted  and  routed  with  a 
finality  that  not  only  overruled  his  objections 
but  cast  serious  aspersions  on  his  legal  attain- 
ments.    Seeing  the  junior  counsel  thus  hurried 
and  dragged  over  his  own  obstacles,  Mr.  Hay 
promptly  came  to  the  rescue  bv  proposing  to 
examme  the  jurors  individually  as  to  any  prej- 
udices  they   might   entertain    against   the   ac- 
cused; but  before  he  could  frame  his  opening 
question  he  was  roughly  interrupted  from  the 
bench.     No  questions  could  be  asked  of  the 
jurors,  he  was  infoiTOed,  save  such  as  were  first 
reduced  to  writing  and  submitted  for  the  ap- 
proval of  the  court. 

For  a  moment  the  three  lawyers  stared  at  the 
bench  m  speechless  amazement,  and  then  burst 
into  angry  protest.     It  was  absolutely  futile 
however,  to  attempt  to  swerve  Chase  from  this 
extraordinary  course,  and  when  the  exhausted 
attorneys  finally  yielded  and  submitted  written 
questions   for   the  jurors,    their  interrogatories 
were  declared  improper  and  rejected  forthwith 
According  to  the  court,  it  did  not  make  any  dif- 
ference if  a  talesman  had  read  and  formed  an 
unfavorable  opinion  of  "The  Prospect  Before 


DECISIVE   BATTLES  OF  THE   LAW 

Us."  He  was  still  eligible  for  the  jury  provided 
he  had  not  formed  an  opinion  concerning  the 
charge  on  which  the  prisoner  was  indicted,  and 
as  none  of  the  candidates  had  read  the  indict- 
ment, they  were  all  qualified  to  serve  on  the 
case.  In  the  face  of  these  unheard-of  rulings, 
the  Virginian  lawyers  apparently  abandoned  all 
hope  of  securing  an  impartial  jury,  for  when  one 
of  the  talesmen,  a  conscientious  planter  by  the 
name  of  Basset,  volunteered  the  information 
that  he  had  read  Callender's  tract  and  had 
formed  a  positive  opinion  that  it  came  under 
the  Sedition  Law,  they  failed  to  record  any  ob- 
jection to  his  retention. 

Having  herded  the  jurors  into  the  box  in  this 
peremptory  fashion.  Chase  was  now  ready  to 
try  the  case,  and  directing  the  District  Attorney 
to  proceed,  he  calmly  settled  back  while  that 
official  described  the  enormity  of  the  prisoner's 
crime  to  the  eight  men  intrusted  with  his  fate. 
Only  certain  portions  of  the  offending  pamphlet 
had  been  recited  in  the  indictment,  and  they 
made  rather  mild  reading,  even  at  that  time, 
while  in  these  days  they  would  scarcely  be  re- 
garded as  sensational,  to  say  nothing  of  criminal. 
Nevertheless,  they  were  clearly  within  the  pro- 
visions of  the  Sedition  Law,  and  proof  of  their 

i8 


THE   UNITED  STATES  vs.   CALLENDER 

authorship  was  practically  all  the  prosecutor 
needed  to  complete  his  case.  This  was  easily 
estabHshed  by  the  testimony  of  the  printers 
who  had  put  the  manuscript  into  type  and  the 
booksellers  who  had  sold  it  as  a  pamphlet,  and 
when  Hay  protested  that  those  men  could  not 
be  compelled  to  answer  the  questions  put  to 
them,  they  being  accomplices  equally  guilty 
under  the  law,  and  privileged  from  testifying 
against  themselves,  the  court  not  only  over- 
ruled his  objections,  but  virtually  promised  the 
hesitating  witnesses  immunity  as  a  reward  for 
their  confessions.  Indeed,  it  was  said  that 
Chase  frequently  identified  himself  with  the 
prosecution  in  this  and  other  ways,  even  using 
the  w^ord  ''we"  to  indicate  a  common  purpose 
between  the  District  Attorney  and  himself. 

Having  succeeded  in  proving  that  the  prisoner 
was  the  author  of  "The  Prospect  Before  Us," 
the  prosecutor  next  attempted  to  introduce  the 
whole  pamphlet  in  evidence,  but  here  the  de- 
fence again  protested,  claiming  that  only  those 
portions  of  the  document  which  were  recited  in 
the  indictment  could  be  considered  by  the  jury, 
especially  in  view  of  the  court's  decision  that 
the  jurors  were  concerned  only  with  the  offence 
charged  in  the  official  papers  and  were  not  dis- 

3  19 


DECISIVE   BATTLES  OF  THE  LAW 

qualified  by  their  .prejudices  against  the  pam- 
phlet as  a  whole.  Chase  was  in  no  mood,  how- 
ever, to  allow  his  previous  rulings  to  be  turned 
against  him.  The  prisoner  was  being  tried  for 
writing  ''The  Prospect  Before  Us,"  and  he  was 
not  to  escape  punishment  because  only  mild 
selections  from  it  appeared  in  the  indictment. 
A  little  informality  of  that  sort  was  best  recti- 
fied by  allowing  the  jury  to  read  the  whole 
pernicious  production.  In  vain  Hay  protested 
against  this  illogical  and  injurious  action.  He 
was  interrupted  and  contradicted,  hurried,  har- 
ried, and  baited  until  the  whole  room  roared 
w^ith  laughter,  for  nothing  is  so  infectious  as 
the  wit  of  the  bench  on  which  a  bully  sits 
enthroned. 

The  prosecution  practically  ended  with  this 
exhibition  of  judicial  tyranny,  and  the  defence 
was  immediately  instructed  to  proceed.  Un- 
prepared as  they  were  to  dispute  the  authorship 
or  publication  of  the  pamphlet,  the  counsel  still 
had  a  chance  of  influencing  the  jury  by  proving 
the  truth  of  its  statements,  and  to  that  end  they 
called  a  well-known  citizen  named  Colonel  Tay- 
lor, to  the  stand.  Before  he  could  utter  a  word, 
however,  the  judge  interrupted,  declaring  that 
every  question  put  to  him  must  be  first  examined 


THE  UNITED  STATES  vs.   CALLENDER 

and  approved  by  the  court.  This  preposterous 
order  fairly  staggered  the  indignant  counsel. 
They  had  submitted  when  forced  to  conduct  the 
examination  of  the  jury  in  this  fashion,  but 
to  be  similarly  hampered  in  questioning  their 
own  witness  was  an  imposition  unheard  of  in 
any  court  of  law,  and  they  remonstrated  in  no 
uncertain  terms. 

Neither  protest  nor  argument  nor  authority, 
however,  had  the  slightest  effect  upon  the  judge, 
and  after  a  fierce  controversy  the  attorneys 
abandoned  their  struggle,  only  to  discover  that 
Chase  would  admit  no  testimony  that  did  not 
prove  the  truth  of  the  whole  paragraph  com- 
plained of  in  the  indictment.  Struggling  to 
conceal  their  exasperation,  they  protested  that 
one  witness  might  prove  the  correctness  of  one 
statemicnt  in  the  pamphlet,  and  another  another, 
and  that  no  one  individual  could  be  expected  to 
substantiate  the  whole  of  it,  and  at  last  Chase 
was  compelled  to  go  through  the  empty  form 
of  consulting  the  District  Judge.  That  shadowy 
official,  however,  meekly  concurred  in  the  views 
of  his  superior,  and,  finding  himself  supported. 
His  Honor  attempted  to  put  an  end  to  the  dis- 
cussion. But  the  fighting  blood  of  the  Virginian 
attorneys  was  now  thoroughly  aroused,  and,  re- 

21 


DECISIVE   BATTLES   OF  THE   LAW 

fusing  to  be  silenced,  they  pressed  their  con- 
tentions with  a  force  that  lashed  Chase  into  a 
rage,  and  the  bitter  wrangle  which  ensued  soon 
had  the  room  in  an  uproar.  Contemptuously 
referred  to  as  "  }'ou  young  gentlemen,"  and  goad- 
ed by  every  public  slight  and  sneer  which  brutal 
authority  could  inflict  upon  them,  the  three  law- 
yers, nevertheless,  stood  their  ground,  insisting 
that  the  rulings  of  the  court  were  equivalent  to  a 
complete  denial  of  justice,  and  virtually  defying 
the  bench.  Finally  the  judge  made  a  pretence 
of  requesting  the  District  Attorney  to  allow  the 
questions  upon  which  ''the  young  gentlemen 
were  so  insistent,"  and  when  he  prudently  de- 
clined the  magistrate  brought  the  matter  to  a 
close  by  hammering  his  opponents  to  their  seats. 
With  this  final  suppression  of  their  only  avail- 
able testimony,  the  defence  had  no  recourse  but 
to  address  the  jury  and  endeavor  to  take  ad- 
vantage of  the  existing  prejudice  against  the 
Sedition  Law.  Wirt  led  this  forloni  hope,  but 
the  moment  he  began  to  argue  against  the  con- 
stitutionality of  the  law  he  was  unceremoniously 
halted  and  informed  that  the  jury  would  not  be 
permitted  to  consider  any  question  of  that  kind. 
The  jurors  were  the  judges  of  the  facts,  and  not 
of  the  law,  declared  the  court  —  a  proposition 


THE   UNITED  STATES  vs.   CALLENDER 

which,  under  ordinary  circumstances,  no  lawyer 
would  have  endeavored  to  dispute.  Wirt,  how- 
ever, intimated  that  the  court  had  suppressed 
the  facts,  and  that  he  was  therefore  reduced  to 
the  necessity  of  discussing  the  law.  Interrupted 
and  told  not  to  reflect  on  the  court,  he  retorted 
with  a  repetition  of  his  statement  in  another 
form,  and  for  a  perilous  moment  the  two  men 
faced  each  other,  speechless  with  rage,  while  the 
frightened  audience  watched  them  in  fascinated 
silence. 

Then  the  intrepid  Virginian  again  turned  slowly 
to  the  jury  and  resumed  his  argument,  attacking 
the  law  with  studious  disregard  of  the  official 
mandate.  With  a  roar  of  anger  Chase  ordered 
him  to  his  seat,  and  as  he  quietly  obeyed,  the 
man  on  the  bench  launched  into  a  frenzied  tirade. 

"Hear  my  words!"  he  ranted.  "I  wish  the 
world  to  know  them!  My  opinion  is  the  result 
of  mature  deliberation!" 

He  then  reiterated  with  increasing  violence 
that  the  facts  were  for  the  jury  and  the  law  for 
the  court,  an  elemental  principle  of  which  the 
world  had  been  previously  informed  and  of 
which  no  one  was  better  advised  than  the  expe- 
rienced law}^ers  he  was  instructing.  The  tables 
were  now  turned,  however,  and  it  was  the  judge 

23 


DECISIVE   BATTLES  OF  THE  LAW 

and  not  the  counsel  who  was  being  baited. 
Indeed,  Chase  had  no  sooner  concluded  his  pom- 
pous proclamation  than  Wirt  once  more  turned 
to  the  jury,  and,  quoting  directly  from  the  third 
section  of  the  Sedition  Act,  which  provided  that 
the  jury  "  should  determine  the  law  and  the  fact 
under  the  direction  of  the  court,  as  in  other 
cases,"  calmly  proceeded  to  discuss  the  forbidden 
subject.  The  Constitution  was  the  law,  he  de- 
clared, and  as  the  jury  had  a  right  to  determine 
the  law,  they  had  logically  the  right  to  consider 
the  Constitution. 

*' A  non  sequitur,  sir!"  shouted  Chase,  and  the 
audience  roared;  whereupon  Wirt  sat  down  in 
disgust  and  Nicholas  took  up  the  same  line  of 
argument  until  he  was  virtually  smothered  by 
interruptions  from  the  bench.  Then  Hay  re- 
sumed the  attack,  but  by  this  time  the  judge 
had  worked  himself  into  a  fury,  and  the  senior 
counsel,  flatly  contradicted,  badgered,  and  in- 
sulted almost  every  time  he  opened  his  lips, 
suddenly  brought  the  unseemly  contest  to  a 
close  by  taking  his  seat  and  gathering  up  his 
papers. 

For  a  few  moments  the  angry  magistrate  did 
not  apparently  comprehend  what  was  happen- 
ing, but  as  Hay's  associates  followed  his  example 

24 


THE   UNITED  STATES  vs,   CALLENDER 

and  began  packing  up  their  books  and  docu- 
ments, the  situation  slowly  dawned  upon  him 
and  for  the  first  time  he  seemed  to  realize  that 
he  had  perhaps  carried  matters  beyond  the  point 
of  safety.  The  retirement  of  the  lawyers  in  the 
Fries  case  had  not  troubled  him  in  the  least, 
but  the  repetition  of  that  rebuke  at  the  hands  of 
the  Virginia  bar  might,  he  well  understood,  be 
fraught  with  much  more  serious  consequences; 
and  when  Hay  rose  and  turned  towards  the  door, 
he  addressed  him  with  surprising  deference. 

"Please  to  proceed,  sir,"  he  requested,  ''and 
be  assured  that  you  will  not  again  be  interrupted 
by  me.     Say  what  you  will." 

The  senior  counsel,  however,  vouchsafed  no 
response  to  these  advances,  and,  amid  intense 
silence,  he  and  his  associates  walked  gravely  to 
the  rear  of  the  room. 

There  was  something  unmistakably  ominous 
in  their  quiet  dignity  and  bearing,  and  the 
judicial  tyrant  was  now  thoroughly  alarmed. 

''I  think  it  right  to  interrupt  counsel  when 
mistaken  in  the  law,"  he  protested.  "  Yet  I  do 
not  mean  to  interrupt  improperly.  There  is  no 
reason  to  be  captious." 

Receiving  no  reply  to  this  apologetic  utter- 
ance, the  speaker's  red  face  assumed  a  purple 

25 


DECISIVE   BATTLES  OF  THE   I>AW 

hue,  and  his  vindictive  Utile  eyes,  following  the 
retreating  figures,  glittered  with  rage.  Finally, 
as  the  door  opened,  he  half  rose  from  his  chair, 
and  roaring,  "As  you  please,  sirs!"  turned  to  the 
jury  and  began  a  long  and  careful  charge. 

Two  hours  later  a  verdict  of  guilty  was  re- 
corded, and  the  prisoner  sentenced  to  nine 
months'  imprisonment  and  a  fine  of  two  hundred 
dollars,  and  required  to  find  sureties  for  good 
behavior  for  a  period  of  two  years. 

Thus  closed  the  last  case  ever  tried  under  the  Se- 
dition Law,  but  it  was  fated  to  be  heard  of  again. 
From  his  cell  in  the  Richmond  jail  the  prisoner 
continued  to  issue  his  libels  until  Jefi'erson  par- 
doned him,  only  to  be  rewarded  by  venomous 
attacks  from  his  pen,  after  the  hated  act  had 
been  repealed;  and  five  years  later  Chase  was 
impeached  before  the  Senate  for  oppressive  and 
vexatious  conduct  during  the  trial,  and  inde- 
cent solicitude  for  the  conviction  of  the  accused. 
Politics  and  Luther  Martin,  however,  interfered 
in  his  behalf,  and  after  a  brilliant  defence  at  the 
hands  of  the  lawyer  for  whose  support  in  his 
last  illness  the  Maryland  legislature  taxed  all 
members  of  the  bar,  he  was  acquitted,  and  re- 
sumed his  duties  without  ever  again  repeating 
the  offences  for  which  he  had  been  an'aigned. 

26 


II 


THE     UNITED     STATES     VS.     BURR! 
THE    INSIDE     HISTORY    OF   A    '' SCOTCH "    VERDICT 

FOR  fifty  years  after  his  downfall  Aaron 
Burr  was  practically  without  defenders, 
but  during  the  last  half-century  a  small  army 
of  champions  has  espoused  his  cause,  and  of 
late  his  adherents  have  been  so  aggressively 
zealous  that  more  heads  than  lances  have  been 
broken  in  his  defence.  His  partisans  are  no 
longer  satisfied  with  rescuing  their  hero  from 
the  national  pillory,  but  insist  upon  providing 
a  victim  in  his  place  and  stead.  Some  of  them 
have  nominated  General  Wilkinson  for  the 
vacancy,  arraigning  him  as  a  villain  of  the 
most  despicable  stripe;  others  have  attacked 
Jefferson  as  a  persecutor  of  incredible  malig- 
nity, and  all  of  them  have  been  carried  far 
afield,  to  the  confusion  of  the  issues  and  the 
injury  of  their  cause. 

But    despite    the    extravagant    claims    and 

27 


DECISIVE   BATTLES  OF  THE   LAW 

counter-claims  by  which  the  enthusiasts  have 
prejudiced  their  campaign,  a  vast  amount  of 
important  information  has  been  laid  before  the 
public,  and  in  the  light  of  this  newly  discovered 
evidence  Burr  is  clearly  entitled  to  a  complete 
rehearing  of  the  trial  which  is  generally  sup- 
posed to  have  demonstrated  his  traitorotis  guilt. 

The  history  of  this  cause  celebre  is  embodied 
in  two  musty  legal  tomes  of  more  than  eleven 
hundred  wretchedly  printed  pages.  But  be- 
neath their  dry  and  technical  exterior  there  lies 
a  dramatic  story  replete  with  human  interest 
and  historical  significance,  and  it  is  fortunate 
for  Burr  that  this  uninviting  record  is  so  ex- 
haustive in  its  scope.  No  other  cause  in  the 
early  history  of  American  courts  is  reported 
with  equal  care ;  but  extraordinary  efforts  were 
made  to  secure  this  result,  for  Jefferson  and  his 
advisers,  realizing  that  the  prosecution  of  an  ex- 
vice-president  might  easily  become  a  dangerous 
political  issue,  determined  to  put  themselves 
squarely  upon  record  with  a  faithful  transcript 
of  all  the  proceedings,  and  it  is  safe  to  assume 
that  they  took  every  other  precaution  to 
strengthen  the  government's  case  and  secure 
the  defendant's  conviction. 

It   is   reasonably   certain,    then,    that   these 


THE   UNITED  STATES  vs.   BURR 

formidable  volumes  contain  every  scintilla  of 
competent  evidence  that  could  be  procured  against 
Burr  at  a  time  when  the  events  were  fresh  in  the 
witnesses'  mindSy  and  as  no  testimony  was  sub- 
mitted in  his  defence,  one  would  not  expect  to 
find  much  material  for  his  vindication  in  such 
a  record.  Strange  as  it  may  seem,  however, 
this  unpromising  official  report  presents  a 
stronger  case  for  Burr  than  all  the  briefs  and 
special  pleadings  of  his  zealous  partisans,  and 
the  explanation  of  this  anomaly  involves  the 
history  of  his  extraordinary  trial. 

All  roads  in  the  United  States  led  to  Rich- 
mond in  the  summer  of  1807,  and  all  news  of 
national  importance  dated  from  the  Virginian 
capital.  As  early  as  May  of  that  year  the  city 
was  swarming  with  strangers  of  every  sort  and 
condition,  from  the  most  eminent  citizens  to 
the  wildest  adventurers,  and  expectant  throngs 
hung  about  the  streets  at  all  hours  of  the  day 
and  night,  frequently  in  the  mood  for  mischief. 
It  was  at  one  of  these  moments  that  a  loud- 
voiced  orator  mounted  the  steps  of  a  corner 
grocery  and  began  to  address  the  bystanders. 
His  gusty  eloquence  and  unbridled  tongue  in- 
stantly caught  the  fancy  of  his  auditors,  but 

29 


DECISIVE   BATTLES  OF  THE   LAW 

hisses  as  well  as  cheers  greeted  his  fiery  periods, 
and  the  noise  attracted  the  attention  of  a  dis- 
tinguished citizen,  who  stopped  to  inquire  the 
cause  of  the  disturbance. 

"  Oh,  it's  a  great  blackguard  from  Tennessee, 
named  Andrew  Jackson,  making  a  speech  for 
Burr  and  damning  Jefferson  as  a  persecutor," 
was  the  answer,  and  the  respectable  gentleman 
hurried  on  out  of  hearing  across  the  court- 
house green. 

It  is  possible  that  Jackson  championed  Burr's 
cause  for  its  own  sake,  for  he  had  had  personal 
dealings  with  the  accused  which  qualified  him 
to  speak  with  authority,  but  most  of  the  poli- 
ticians who  supported  their  former  leader  did 
so  not  because  they  loved  or  believed  in  him, 
but  because  they  hated  and  distrusted  Jefferson. 
The  general  public,  however,  had  no  interest  in 
the  defendant  save  to  see  him  hanged ;  and  the 
men  in  the  street,  having  already  convicted  him 
by  common  consent,  merely  regarded  his  trial 
as  a  spectacular  formality  enabling  them  to  be 
in  at  the  death. 

Still,  the  little  city  of  six  thousand  inhabit- 
ants sheltered  many  intelligent  people  to  whom 
Aaron  Burr  ever  remained  the  great  man,  gift- 
ed, mysterious,  and  fascinatingly  terrible,  and 

30 


THE  UNITED  STATES  vs.   BURR 

those  who  came  into  close  contact  with  him 
almost  invariably  surrendered  to  his  personal 
charm.  Even  to  his  jailer  he  was  the  Grand 
Seigneur  whose  rights  there  was  none  to  dis- 
pute. 

"I  hope,  sir,"  ventured  that  official  at  their 
first  encounter,  ''  that  it  would  not  be  disagreea- 
ble to  you  if  I  should  lock  this  door  after  dark  ?" 

''By  no  means,"  graciously  returned  the 
prisoner.  "I  should  prefer  it  to  keep  out 
intruders." 

"It  is  our  custom,  sir,"  continued  the  turn- 
key, "to  extinguish  all  lights  at  nine  o'clock. 
I  hope,  sir,  you  will  have  no  objection  to  con- 
form to  that." 

"That,  sir,"  answered  Burr,  "I  am  sorry  to 
say  is  impossible,  for  I  never  go  to  bed  until 
twelve  and  always  burn  two  candles." 

"Very  well,  sir — ^just  as  you  please,"  agreed 
the  jailer.  "  I  should  have  been  glad  if  it  had 
been  otherwise;  but  as  you  please,  sir." 

This  was  the  man  whose  trial  had  attracted 
the  vast  assemblage  to  Richmond  —  a  man 
known  from  one  end  of  the  country  to  the 
other  as  a  gallant  soldier  of  the  Revolution, 
a  famous  lawyer,  a  shrewd  politician,  an  able 
United    States    Senator,    a   candidate   for    the 

31 


DECISIVE   BATTLES   OF  THE   LAW 

Presidency  whose  tie  vote  with  Jefferson  had 
been  broken  only  after  a  bitter  struggle,  from 
which  he  had  emerged  as  vice-president  to 
hound  Hamilton  into  a  fatal  duel  and  to  en- 
tangle himself  in  a  web  of  conspiracy  apparently 
spun  with  the  threads  of  treason. 

All  this,  and  much  more  than  this,  was 
know^n  to  every  newspaper  reader  in  the  land, 
and  those  who  had  no  access  to  the  press  were 
almost  as  well  informed  by  the  current  rumors 
and  discussions  of  the  day.  The  whole  coim- 
try  knew  that  his  duel  with  Hamilton  had 
ostracized  Burr  from  society,  and  driven  him 
from  politics  with  two  indictments  for  murder 
hanging  over  his  head  and  financial  ruin  star- 
ing him  in  the  face,  and  no  argument  was 
needed  to  persuade  the  public  that  a  social 
and  political  outcast  such  as  he  would  seek  to 
retrieve  his  fortunes  by  some  desperate  under- 
taking calculated  to  satisfy  his  prodigal  ambi- 
tions and  quench  his  thirst  for  revenge.  Under 
such  circumstances  the  man  was  a  suspicious 
character  on  general  principles,  and  if  an  accusa- 
tion of  treason  against  him  needed  any  other 
support,  the  history  of  the  times  supplied  it. 
Every  one  knew  that  the  country  had  long  been 
on  the  verge  of  war  with  Spain,  and  that  the 

32 


THE  UNITED  STATES  vs.   BURR 

Western  States  had  been  in  an  ugly  mood  at 
the  government's  neglect  of  their  demands  for 
the  free  navigation  of  the  Mississippi  and  other 
trading  concessions  from  the  Dons.  Diplo- 
macy, it  is  true,  had  averted  actual  hostilities, 
and  the  commercial  grievances  had  largely 
disappeared  with  the  purchase  of  Louisiana 
from  the  French,  but  the  fighting  blood  of  the 
westerners  had  been  aroused,  and  the  treat- 
ment they  had  received  from  their  Spanish 
neighbors  had  left  them  sore  and  none  too 
pleased  with  a  peaceful  solution  of  the  diffi- 
culties. 

These  facts  were  matters  of  common  knowl- 
edge, so  when  it  was  asserted  that  Burr  had 
planned  to  take  advantage  of  the  situation  to 
precipitate  a  war  with  Spain,  lead  the  dis- 
gruntled States  to  the  redress  of  their  own 
grievances  and  the  conquest  of  Spanish  prov- 
inces, and  then  to  separate  them  from  the 
Union,  the  information  fell  on  willing  ears. 
Even  after  the  war-cloud  had  passed,  the 
scheme  did  not  appear  chimerical,  for  the 
Spanish  possessions  still  remained  as  a  tempt- 
ing bait  for  covetous  western  eyes,  and  when 
it  was  rumored  that  Burr  had  not  abandoned 
his  design,  but  intended  to  lure  the  disaffected 

Z3 


DECISIVE   BATTLES  OF  THE  LAW 

States  from  their  allegiance  with  the  conquest 
of  coveted  foreign  possessions,  the  accusation 
had  all  the  force  of  proof,  though  details  of  the 
nefarious  business  were  not  lacking.  Burr,  it 
appeared,  had  acquired  an  ascendency  over 
Harman  Blennerhassett,  ''the  Monte  Cristo  of 
the  Ohio,"  and  his  fabulous  fortune  had  been 
placed  at  the  disposal  of  the  arch  conspirator, 
who  had  employed  it  in  building  a  navy  and 
equipping  an  army  of  invasion.  It  was  further 
explained  that  operations  were  to  have  been 
begun  with  a  descent  on  Baton  Rouge  or  New 
Orleans,  where  the  banks  were  to  have  been 
looted  and  the  enemy  furnished  with  the  sinews 
of  war,  and  that  these  plans  had  been  frustrated 
only  through  the  zeal  and  patriotism  of  General 
Wilkinson  and  the  prompt  action  of  the  au- 
thorities, which  had  effected  the  surprise  and 
capture  of  the  insurgent  forces  with  all  the  chief 
conspirators. 

Such  was  the  story  of  the  plot  widely  pub- 
lished in  the  press  and  confirmed  by  the  gov- 
ernment proclamations  and  the  movements  of 
the  United  States  forces  under  General  Wilkin- 
son. This  zealous  informer,  in  a  fine  frenzy  of 
patriotism,  had  declared  martial  law  in  New 
Orleans  at  the  first  sign  of  danger,  and  his  spec- 

34 


THE   UNITED   STATES  vs.   BURR 

tacular  efforts  to  suppress  the  threatened  re- 
bellion caught  the  popular  fancy  and  made  him 
the  man  of  the  hour.  As  time  went  on,  how- 
ever, and  no  sign  of  disaffection  appeared  in  the 
States  which  were  supposed  to  be  hot-beds  of 
insurrection,  the  pubHc  soon  tired  of  his  turbu- 
lent exertions.  Moreover,  Burr's  much-heralded 
army  and  navy  failed  to  put  in  an  appearance, 
and  it  was  subsequently  learned  that  he  had 
never  commanded  anything  but  a  few  flatboats 
carrying  a  handful  of  unarmed  men.  Finally, 
when  it  became  rumored  that  Wilkinson  was  a 
pensioner  of  the  Spanish  government,  trouble- 
some questions  began  to  be  asked  without  an- 
swer. How  did  the  General  happen  to  be  in 
the  confidence  of  a  traitor?  What  were  his 
relations  with  Spain,  and  what  was  an  officer 
of  the  United  States  army  doing  with  a  foreign 
pension  anyway?  Had  he  not  compromised 
himself  in  some  manner,  and  was  he  not  trying 
to  escape  complicity  by  raising  a  dust  and 
making  much  ado  about  nothing  ? 

The  whole  affair  began  to  look  ridiculous; 
but  the  Administration  had  no  intention  of 
being  laughed  out  of  court,  and  at  the  proper 
moment  it  submitted  proofs  strong  enough  to 
silence   the   most  incorrigible   doubter.     These 

35 


DECISIVE   BATTLES  OF  THE   LAW 

were  nothing  less  than  the  sworn  statements  of 
Generals  Wilkinson  and  Eaton,  and  of  Commo- 
dore Truxtun,  who  had  apparently  been  ap- 
proached by  Burr  with  offers  of  high  command 
or  otherwise  tempted  to  participate  in  his 
treason,  and  these  telltale  exhibits  were  pub- 
lished broadcast  throughout  the  land.  In  the 
face  of  such  testimony  it  was  no  longer  possible 
for  any  one  to  dispose  of  the  expedition  as  a 
mere  filibustering  effort  against  Spain,  or  to  rid- 
icule the  Administration's  extraordinary  zeal. 
There  stood  the  facts  in  black  and  white,  re- 
vealing as  damnable  a  story  of  treason  as  was 
ever  recorded,  and  the  moment  this  was  com- 
prehended there  was  practically  but  one  opinion 
of  the  defendant  in  the  case  of  the  United  States 
against  Burr. 

It  is  no  wonder,  then,  that  an  excited  multi- 
tude stormed  the  Federal  Court  for  the  Fifth 
Circuit  and  District  of  Virginia  at  Richmond  on 
the  morning  of  August  3d,  long  before  the  hour 
of  opening,  and  that  the  tipstaves  were  rushed 
off  their  feet  in  their  efforts  to  guard  the  doors. 
Had  they  been  able  to  announce  that  the  trial 
would  be  one  of  the  longest  upon  record,  they 
might  have  discouraged  the  invaders,  but  as  it 
was  they  barely  succeeded  in  saving  the  space 

36 


THE  UNITED  STATES  vs,   BURR 

reserved  for  the  contending  counsel,  leaving  the 
other  members  of  the  bar  to  fight  their  way  in 
with  the  crowd,  which  included  Zachary  Taylor 
and  Washington  Irving,  among  many  others 
known  to  fame  or  destined  to  become  so.  A 
similar  crush  had  occurred  when  Burr  had  been 
indicted,  and  then  Winfield  Scott  was  the  only 
representative  of  the  legal  profession  who  had 
secured  a  post  of  vantage,  and  he  held  it  solely 
by  virtue  of  those  fighting  qualities  which  sub- 
sequently distinguished  him  in  the  war  with 
Mexico.  Whether  or  not  he  was  equally  suc- 
cessful on  this  later  occasion  cannot  be  demon- 
strated, but  it  is  certain  that  when  the  prisoner 
appeared  in  the  court-room,  accompanied  by  his 
son-in-law,  the  Governor  of  South  Carolina,  there 
was  not  an  inch  of  standing-room  unoccupied, 
and  almost  the  entire  audience  was  on  its  feet 
as  he  made  his  impressive  entrance. 

Always  dignified  and  mindful  of  personal  ap- 
pearance. Burr  had  dressed  himself  with  scrupu- 
lous care  in  a  becoming  suit  of  black,  and  his 
powdered  hair,  drawn  into  a  queue  neatly  tied 
with  ribbon,  displayed  his  strong  face  to  the 
best  possible  advantage.  His  remarkable  eyes 
swept  slowly  and  serenely  over  the  hostile  spec- 
tators,   and   General  Wilkinson  was   the  only 

37 


DECISIVE  BATTLES  OF  THE  LAW 

observer  who  detected  any  faltering  in  his  gaze. 
Wilkinson  had,  however,  a  better  opportunity 
than  any  one  else  for  studying  the  prisoner's 
countenance,  for  Burr  undoubtedly  favored  him 
with  more  than  a  passing  glance.  Indeed,  there 
is  evidence  that  his  eyes  rested  for  several  mo- 
ments on  his  accuser's  ruddy  countenance,  and 
then  travelled  down  the  whole  length  of  his 
rotund  person  and  up  again  before  they  con- 
centrated in  a  stare  which  the  chief  witness  for 
the  government  afterwards  described  as  terror- 
stricken,  but  which  was  otherwise  interpreted 
by  less  prejudiced  authorities.  It  is  not  at  all 
probable,  however,  that  the  pensioner  of  Spain 
or  any  other  witness  would  have  succeeded  in 
forcing  Buit  to  betray  himself.  He  knew  that 
every  eye  in  the  room  was  focussed  upon  him, 
eager  to  detect  a  sign  of  guilt,  but  the  situation 
had  no  terrors  for  a  man  accustomed  to  facing 
public  assemblages  and  swaying  them  at  will. 
Under  some  other  test  it  is  conceivable  that  he 
might  have  flinched,  for  in  the  field  of  intrigue 
he  had  made  a  sorry  exhibition  of  himself  and 
betrayed  his  plans  at  every  turn.  But  in  the 
court-room  he  was  at  home  again  and  master  of 
the  event,  and  it  was  as  a  lawyer  that  he  coolly 
surveyed  the  hostile  audience  before  he  turned 

38 


THE  UNITED  STATES  vs.   BURR 

and  gravely  inclined  his  head  towards  the  judge 
and  assembled  counsel. 

Chief -Justice  John  Marshall,  the  great  ex- 
ponent of  the  Constitution,  whose  statue  holds 
a  place  of  honor  only  second  to  Washington's 
at  the  national  Capitol,  had  been  designated  to 
conduct  the  trial,  and  by  his  side  sat  Cyrus 
Griffin,  the  district  judge,  who  may  have  been 
an  ornament  to  the  bench  in  every  sense  of  the 
word,  but  whose  presence  on  this  as  on  a  for- 
mer occasion  was  solely  ornamental.  The  Chief 
Justice  had  been  appointed  to  the  bench  as  a 
Federalist,  and  he  was  therefore  politically  op- 
posed to  Jefferson,  but  no  more  fortunate  judi- 
cial assignment  could  have  been  made  for  a  trial 
which  was  to  require  not  only  ability  and  learn- 
ing, but  also  courage  and  originality  of  a  high 
order.  Indeed,  no  one  but  a  jurist  of  authority 
could  have  commanded  the  respect  of  the  com- 
pany gathered  at  the  lawyers'  tables,  for  a  more 
brilliant  assemblage  of  legal  talents  never  graced 
a  court  of  law. 

Edmund  Randolph  was  Burr's  senior  counsel 
— a  lawyer  of  national  reputation,  whose  record 
as  Attorney  -  General  and  Secretary  of  State 
under  Washington,  and  as  Attorney  -  General 
and  Governor  of  Virginia,  well  entitled  him  to 

39 


DECISIVE   BATTLES  OF  THE  LAW 

his  pre-eminence  in  the  profession.  His  second- 
in-command  was  John  Wickham,  an  Enghsh- 
man  by  birth,  one  of  the  foremost  lawyers  in 
Virginia — a  master  of  wit  and  sarcasm,  and  a 
past-master  of  strategic  wiles;  and  by  his  side 
sat  Luther  Martin,  ex- Attorney-General  of  Mary- 
land, who  knew  more  law  when  drunk  than  most 
of  the  bar  knew  when  sober,  and  who  had  volun- 
teered his  services  in  sheer  hatred  of  Jefferson 
and  all  his  works.  Coarse,  vulgar,  gross,  and 
generally  under  the  influence  of  liquor,  this 
man's  mind  was  still  a  perfect  storehouse  of 
legal  precedents,  and  before  the  trial  ended,  his 
excessive  zeal  exasperated  Jefferson  to  the  point 
of  seriously  suggesting  his  indictment.  With 
this  brilliant  trio  were  associated  Benjamin 
Botts,  father  of  John  Minor  Botts,  the  distin- 
guished Virginian;  Charles  Lee,  ex- Attorney- 
General  of  the  United  States  and  member  of 
another  distinguished  Virginian  family;  and 
Jack  Baker,  a  lame  man,  who  played  the  merry- 
andrew  and  kept  the  audience  diverted  with  his 
ready  wit  and  good-humor.  All  of  these  distin- 
guished counsel  represented  the  accused  without 
accepting  compensation  of  any  kind. 

To  this  formidable  array  of  volunteers  the 
government    opposed    the    District  -  Attorney, 

40 


THE  UNITED  STATES  vs.   BURR 

George  Hay,  son-in-law  of  James  Monroe,  the 
future   President,    a   respectable,    zealous,    and 
fairly  capable  lawyer,  but  long-winded  and  with- 
out initiative.     He  was  ably  seconded,  however, 
by  William  Wirt,  the  most  promising  member 
of  the  Richmond  bar,  a  handsome,  captivating 
fellow  not  over  thirty-five  years   of  age,   but 
destined  to  prove  himself  worthy  of  any  man's 
steel;  and  Alexander  MacRae,  the  crusty,  sharp- 
tempered  Lieutenant-Governor  of  Virginia,  an 
able  lawyer  of  courage  and  tenacity,  was  also 
retained  in  the  government's  interests.     Neither 
defence   nor   prosecution,    however,    boasted   a 
more   formidable   advocate   than    the   prisoner 
himself,   and  even  the  Chief  Justice  was  less 
experienced,   for,    as   President  of  the   Senate, 
Burr  had  presided  at  the  impeachment  of  Judge 
Samuel  Chase— the  only  cause  at  all  comparable 
in  importance  with  the  case  at  bar— and  his  con- 
duct of  that  historic  arraignment  had  been  in 
every  way  distinguished.     He  was  not,  it  is  true, 
the  highest  type  of  the  profession,  but  by  nature 
and  training  he  was  a  power  in  the  courts,  and 
rumor  has  it  that  he  never  lost  a  case. 

Man  to  man,  then,  the  government  was  over- 
weighted at  the  start,  but  the  spectators,  anx^ 
iously  awaiting  the  opening  of  hostilities,  did  not 

41 


DECISIVE   BATTLES  OF  THE  LAW 

know  this,  and  it  would  not  have  affected  their 
opinion  of  the  outcome  if  they  had  been  thor- 
oughly informed.  The  belief  in  Burr's  guilt  had 
become  so  firmly  fixed  in  the  public  mind  that 
doubt  almost  smacked  of  disloyalty,  and  it  was 
generally  expected  that  the  prosecution  would 
make  short  work  of  the  defence.  The  proceed- 
ings had  no  sooner  begun,  however,  than  it  was 
demonstrated  that  the  Administration  had  tried 
its  case  in  the  newspapers  not  wisely  but  too 
well.  Only  four  of  the  first  panel  of  forty-eight 
talesmen  summoned  for  jury  duty  had  undecided 
opinions  about  Burr,  and  only  one  of  those  four 
expressed  himself  as  entirely  unprejudiced  con- 
cerning him.  The  other  forty-four  were  so  ir- 
reconcilably hostile  that  the  court  promptly  dis- 
charged them,  and  another  panel  was  summoned. 
This  second  lot,  however,  was  worse  than  the 
first,  and  the  situation  grew  more  and  more 
serious  as  the  sifting  process  continued,  for  one 
candidate  after  another  expressed  open  hostility 
and  even  hatred  for  the  defendant.  At  last, 
when  hope  of  securing  an  impartial  jury  had 
almost  faded,  a  talesman  by  the  name  of  Morri- 
son took  the  stand  who,  it  was  believed,  would 
prove  an  exception  to  the  rule.  This  gentleman 
had  apparently  kept  an  open  mind  on  the  sub- 

42 


THE   UNITED  STATES  vs.   BURR 

ject  of  the  prisoner's  innocence  or  guilt,  and 
was  willing  to  serve  as  a  juror — almost  too  will- 
ing it  seemed  to  the  defence — and  Mr.  Botts  rose 
to  cross-examine. 

''Are  you  a  freeholder?"  asked  the  counsel. 

"  Yes ;  I  have  two  patents  for  land,"  answered 
the  candidate. 

''Are  3^ou  worth  three  hundred  dollars?"  con- 
tinued the  examiner. 

"  Yes, ' '  snapped  the  witness.  "  I  have  a  horse 
here  worth  half  of  it." 

"  Have  you  another  at  home  to  make  up  the 
other  half?"  jocosely  pursued  the  attorney,  and 
the  audience  laughed. 

"Yes,  four  of  them!"  retorted  the  talesman, 
angrily.  "  I  am  surprised  there  should  be  so 
much  terror  of  me,"  he  continued,  addressing 
the  audience;  "but  perhaps  my  name  may  be 
a  terror,"  he  added,  his  voice  rising  to  a  shout, 
"for  my  first  name  is  Hamilton T' 

This  "unprejudiced"  candidate  was  then  ex- 
cused, and  for  fourteen  days  the  weary  search 
continued  without  success.  Not  one  impartial 
citizen  was  discovered  in  the  entire  second  panel ; 
and  at  this  juncture  the  proceedings  were 
brought  to  a  stand-still.  After  some  discussion, 
however,  the  defence  suggested  that  it  be  al- 

43 


DECISIVE   BATTLES  OF  THE  LAW 

lowed  to  select  any  one  it  chose  from  the 
last  panel,  and  the  acceptance  of  this  unique 
proposition  paved  the  way  for  one  of  the 
most  startling  moves  in  this  extraordinary 
trial. 

Strictly  speaking,  not  one  of  the  proposed 
jurors  was  eligible  to  a  seat  in  the  jury-box, 
but  of  course  some  of  them  were  less  bitter 
against  the  defendant  than  others,  and  it  was 
natural  to  suppose  that  Burr's  advisers  would 
take  advantage  of  that  fact  and  select  the  best 
of  a  bad  lot.  Nothing  so  commonplace,  how- 
ever, characterized  their  plans,  and  to  the  utter 
amazement  of  all  outsiders  Burr  proceeded  to 
nominate  the  most  objectionable  talesmen  on 
the  entire  list.  Inexplicable  as  this  surprising 
manoeuvre  must  have  been  to  the  general  public, 
it  was,  of  course,  instantly  comprehended  by 
the  opposing  counsel.  Burr  and  his  advisers 
doubtless  reasoned  that  the  safest  jurors  would 
be  those  whose  hostility  had  been  most  thor- 
oughly exposed.  The  very  fact  that  he  was 
willing  to  place  his  life  in  the  hands  of  his 
avowed  enemies  was,  of  course,  the  most  elo- 
quent protest  of  innocence  which  a  prisoner 
could  make.  It  was  a  disarming  appeal  to 
their  honor  and  fairness,   and  under  ordinary 

44 


THE   UNITED  STATES  vs.   BURR 

circumstances  this  bold,  well-planned,  and  sub- 
tle move  could  not  possibly  have  failed. 

Certainly  the  men  selected  had  made  no 
secret  of  their  feelings  towards  the  accused. 
Indeed,  one  of  them  had  openly  expressed  him- 
self to  the  effect  that  Burr  ought  to  be  hanged, 
and  another  was  reported  to  have  said  that  he 
had  come  to  Richmond  with  the  express  hope  of 
being  chosen  on  the  jury,  and  that  if  he  were 
fortunate  enough  to  be  accepted  he  would  vote 
to  hang  the  defendant  without  more  ado.  This 
individual  subsequently  explained  that  he  had 
uttered  this  monstrous  sentiment  in  a  spirit  of 
levity,  but  his  later  conduct  illustrated  the 
maxim  that  there  is  many  a  true  word  spoken 
in  jest.  Both  he  and  the  other  advocate  of 
summary  punishment,  and  others  equally  unfit, 
were,  nevertheless,  gravely  sworn  in  as  impar- 
tial trial  jurors.  Some  had  the  decency  to 
protest  against  their  selection,  declaring  them- 
selves utterly  incapable  of  rendering  a  fair  and 
impartial  verdict,  but  their  excuses  were  over- 
ruled, and  when  the  jury  was  at  last  completed 
it  is  safe  to  say  that  a  more  hostile  array  never 
confronted  a  prisoner  on  trial  for  his  life. 

The  District  Attorney  then  opened  for  the 
government  with  a  recital  of  the  facts  by  which 

45 


DECISIVE   BATTLES  OF  THE  LAW 

he  intended  to  prove  the  prisoner  worthy  of  an 
ignominious  death,  and  if  the  audience  had  not 
previously  been  convinced  of  his  guilt  they 
would  have  been  persuaded  by  the  powerful 
arraignment  to  which  they  listened  in  breath- 
less silence,  and  doubtless  there  was  a  general 
feeling  in  the  crowded  court-room  that  this 
furious  attack  was  the  beginning  of  the  end. 

The  moment  General  Eaton,  the  first  witness, 
took  the  stand,  however,  the  prosecution  re- 
ceived a  sudden  and  unexpected  check.  With 
expectation  roused  to  the  highest  pitch,  and 
every  ear  strained  to  catch  the  opening  ques- 
tions and  answers,  Burr's  lawyers  rose  and 
interposed  a  preliminary  objection.  Neither 
General  Eaton  nor  any  other  witness  could 
testify  as  to  the  defendant's  treasonable  inten- 
tions, they  contended,  until  some  treasonable 
act  of  his  should  be  proved.  This  principle  was 
not  new.  The  rule  of  law  that  proof  of  a 
killing  must  precede  all  other  evidence  in  a 
murder  trial  had  long  been  established,  but  the 
application  of  this  doctrine  to  the  case  at  bar 
interfered  with  the  prosecution's  plans,  and  the 
counsel  for  the  government  were  instantly  up 
in  arms.  Doubtless  the  lay  spectators  who 
watched  the  fierce  skirmish  which  ensued  were 

46 


THE  UNITED  STATES  vs.   BURR 

sorely  puzzled  to  understand  what  it  all  meant, 
but  the  contending  forces  evidently  realized  its 
full  importance  and  a  sharp  skirmish  followed. 
For  a  time  the  prosecution  succeeded  in  main- 
taining its  position,  but  the  attack  was  persist- 
ent, and  before  night  put  an  end  to  the  conflict 
the  government  forces  were  obliged  to  yield 
ground  and  re-form  their  lines  for  a  modified 
campaign.  This  was  so  quietly  effected  that 
few  la3^men  realized  how  seriously  the  prose- 
cution had  been  damaged,  and  when  Gen- 
eral Eaton  resumed  the  witness-chair  the  next 
morning  no  one  but  the  lawyers  knew  exactly 
what  had  happened.  The  Chief  Justice  had, 
however,  ruled  that  the  witness  might  testify  as 
to  Burr's  intentions  to  commit  the  particular 
acts  specifically  set  forth  in  the  indictment,  but 
that  no  testimony  of  general  treasonable  designs 
would  be  received— a  distinction  with  a  differ- 
ence which  was  to  prove  increasingly  important 
as  the  case  proceeded. 

Eaton's  testimony  was  not  apparently  af- 
fected by  the  decision.  It  was,  in  the  main, 
a  repetition  of  the  facts  set  forth  in  his  pub- 
lished statements  detailing  Burr's  attempts  to 
induce  him  to  accept  a  military  command  in 
the  proposed  expedition.     He  had  agreed,  he 

47 


DECISIVE   BATTLES  OF  THE  LAW 

said,  to  co-operate  in  the  undertaking  as  long 
as  it  was  confined  to  the  conquest  of  Mexico, 
but  when  its  treasonable  nature  had  been  re- 
vealed to  him,  he  had  repudiated  the  whole 
business  with  scorn  and  loathing. 

It  was  a  smooth,  carefully  rehearsed,  and  on 
the  whole  a  convincing  story,  and  the  defence 
allowed  the  witness  to  tell  it  without  objection 
or  interruption  of  any  kind,  but  not  a  tone  of 
his  voice  or  an  expression  of  his  face  escaped 
the  watchful  eyes  of  Burr  and  his  advisers ;  and 
when  the  recital  had  been  brought  to  a  trium- 
phant conclusion,  Luther  Martin  rose  slowly 
from  his  seat  and  confronted  the  accuser.  There 
was  a  moment's  profound  silence,  and  then  the 
attack  began. 

Had  not  General  Eaton  visited  the  capital 
shortly  after  he  had  learned  of  the  prisoner's 
treasonable  plans?  The  witness  admitted  that 
he  had.  Well,  did  he  at  that  time  denounce 
the  plot  to  the  authorities?  No.  Why  not, 
pray?  Because  he  feared  to  place  his  testi- 
mony against  the  weight  of  Mr.  Burr's  char- 
acter. Indeed!  Well,  he  had  held  a  conference 
with  the  President  on  that  occasion  concerning 
Mr.  Burr,  had  he  not?  Yes.  Just  what  was 
the  nature  of  that  conference?     He  had  urged 

48 


THE   UNITED  STATES  vs.   BURR 

the  President  to  appoint  Burr  to  a  foreign 
mission  —  either  Paris,  London,  or  Madrid. 
What!  Impossible!  Surely  he  never  could 
have  recommended  a  man  whom  he  knew  to 
be  a  traitor  to  his  country  for  an  important 
post  in  the  country's  service  ?  That  was  utterly 
incredible!  He  had  done  so  only  to  rid  the 
country  of  a  dangerous  citizen.  Really?  So 
that  was  his  purpose,  was  it?  Had  he  con- 
fided this  highly  moral  argument  to  the  Presi- 
dent, or  had  he  sealed  it  in  his  patriotic  bosom  ? 
He  had  not  confided  it  to  the  President.  Ex- 
actly! Well,  possibly  that  was  the  reason  the 
appointment  had  not  been  made !  * 

Although  the  witness  had  endeavored  to 
forestall  these  extraordinary  admissions  in  his 
published  affidavit  and  in  his  direct  examina- 
tion, their  full  significance  had  not  been  appre- 
ciated, and  the  sensation  they  produced  had 
scarcely  subsided  when  he  was  on  the  rack 
again — this  time  with  Burr  as  chief  inquisitor. 

Had  not  the  witness  been  attempting  for 
some  years  to  collect  a  certain  claim  from  the 
United  States  government?  He  had.  Well, 
what  was  the  nature  of  that  claim?     It  was 

^  The  effect  and  substance  of  the  cross-examination  and  not 
the  exact  questions  and  answers  are  here  attempted. 

49 


DECISIVE   BATTLES  OF  THE   LAW 

for  money  owed  to  the  witness  by  the  United 
States  government  for  official  expenses  in  Trip- 
oh.  Well,  had  he  not  presented  that  claim  to 
Congress?  He  had.  Did  Congress  reject  or 
allow  it?  It  did  not  allow  it,  eh?  Well,  was 
it  not  true  that  certain  very  injurious  strictures 
had  been  passed  upon  the  conduct  of  the  wit- 
ness while  his  claim  was  under  discussion  in 
the  House  of  Representatives?  He  had  been 
criticised.  Unjustly?  Of  course!  But  the  end 
of  it  all  was  the  rejection  of  the  claim,  wasn't 
it?  It  was  not  allowed.  Well,  anyway  it 
wasn't  paid,  was  it?  Not  then.  Not  then? 
Then  when?  Some  time  ago?  About  how 
long  since?  Was  it  before  or  after  the  witness 
swore  to  the  deposition  against  the  prisoner  in 
this  case  ?  After.  Indeed !  Just  about  how  long 
after  he  signed  that  widely  published  document 
had  his  claim  been  adjusted?  Three  weeks 
afterwards.  Really?  Well,  what  was  the  sum 
then  paid  to  him?  That  was  his  private  con- 
cern. No,  sir,  it  was  public  business!  What 
sum  had  he  so  opportunely  received  from 
Treasury  ftinds  ?     Ten  thousand  dollars ! 

No  further  questions  were  necessary  to  dis- 
credit the  witness,  and  if  any  informer  ever  left 
the  stand  more  thoroughly  impeached,  his  testi- 

50 


THE   UNITED   STATES  vs.   BURR 

mony  has  mercifully  been  omitted  from  the 
records.  Under  ordinary  circumstances  such 
testimony  would  have  ruined  the  prosecution's 
case;  but  the  times  were  out  of  joint  for  Burr, 
and  probably  no  exposure  of  his  enemies  could 
have  succeeded  in  reinstating  him  in  the  public 
confidence. 

But  despite  the  advantage  of  their  intrenched 
position  the  government  forces  must  have  been 
thrown  into  some  confusion  by  this  fiasco, 
for  they  placed  Commodore  Truxtun  on  the 
stand,  and  nothing  but  excitement  and  disorder 
can  explain  such  an  egregious  blunder.  Indeed, 
after  he  was  called  and  before  he  had  fairly 
begun  his  testimony  the  District  Attorney  at- 
tempted to  withdraw  him,  but  the  defence  in- 
stantly objected,  and  the  mischief  was  done. 

He  had  been  approached  by  Burr,  he  assert- 
ed, to  take  charge  of  a  naval  expedition  against 
Mexico,  but  had  declined  the  proposition  be- 
cause the  President  had  not  been  privy  to  it. 
That  was  all  there  was  to  his  testimony — not  a 
word  about  secession  or  disunion  or  anything 
akin  to  it.  In  fact,  he  unequivocally  declared 
that  he  knew  nothing  whatsoever  concerning 
any  treasonable  act  on  Burr's  part!  Encour- 
aged by  this  feeble  showing,   the  defence  in- 

5  SI 


DECISIVE   BATTLES  OF  THE  LAW 

stantly  pressed  forward,  assuming  the   offen- 
sive. 

"Were  we  not  on  terms  of  intimacy?"  Bun- 
demanded  of  the  witness.  ''Was  there  any 
reserve  on  my  part  in  our  frequent  conversa- 
tions, and  did  you  ever  hear  me  express  any 
intention  or  sentiment  respecting  a  division  of 
the  Union?" 

Truxtun  received  this  volley  of  questions  with 
perfect  calmness. 

"We  were  very  intimate,"  he  admitted. 
"There  seemed  to  be  no  reserve  on  your  part. 
I  never  heard  you  speak  of  a  division  of  the 
Union." 

"  Did  I  not  state  to  you  that  the  Mexican 
expedition  would  be  very  beneficial  to  the 
country?"  Burr  triumphantly  demanded. 

"You  did,"  repHed  the  witness;  and  then 
passing  to  his  colonization  plans  the  prisoner 
continued : 

"  Had  you  any  serious  doubts  as  to  my  inten- 
tions to  settle  those  lands?" 

"  So  far  from  that,"  answered  the  Commodore, 
"I  was  astonished  at  the  intelligence  of  your 
having  different  views  contained  in  the  news- 
papers received  from  the  Western  States  after 
you  went  thither." 

52 


THE  UNITED  STATES  vs.    BURR 

After  this  open  discomfiture  the  prosecution 
had  no  choice  but  to  withdraw  the  Commodore 
and  cover  his  retreat  as  best  it  might,  and  the 
move  was  effected  in  good  order,  ending  in  an 
apparently  formiidable  stand  with  Peter  Taylor, 
the  gardener  of  Blennerhassett's  Island. 

Blennerhassett's  Island  was  known  to  have 
been  the  headquarters  of  the  conspirators,  and 
it  was  there,  if  anywhere,  that  the  government 
should  have  been  able  to  locate  some  treasonable 
act  on  Burr's  part  to  support  the  indictment. 
Up  to  this  point  all  the  testimony  had  related  to 
what  Burr  had  said.  Now,  with  a  witness  from 
the  scene  of  action,  it  was  expected  that  evi- 
dence of  his  treasonable  acts  would  be  forth- 
coming, and  the  excitement  rose  to  high  pitch. 
Taylor  started  off  bravely  by  repeating  a  con- 
versation he  had  had  with  Blennerhassett  about 
getting  together  a  company  of  young  men  with 
rifles.  These  men  were  wanted,  he  was  in- 
formed, to  aid  in  settling  some  lands  which 
Burr  had  purchased,  and  later  his  employer 
advised  him  that  Burr  and  he  intended  an 
invasion  of  Mexico.  The  witness  thereupon 
told  Blennerhassett  that  the  people  had  got  it 
into  their  heads  that  Burr  and  he  intended  to 
divide  the  Union,   to  which  reply  was  made 

53 


DECISIVE   BATTLES  OF  THE   LAW 

that  Burr  and  he  could  not  of  their  own  motion 
effect  a  secession;  they  could  only  show  the 
people  the  advantages  of  separating  from  the 
Union. 

This  was  certainly  dangerous  talk,  but  Blen- 
nerhassett  and  not  Burr  was  responsible  for  it, 
as  the  latter  was  not  present  at  the  conversation, 
mid  it  presently  appeared  that  the  witness  had 
never  even  as  much  as  seen  Burr  on  Blenner- 
hassetfs  Island!  This  ludicrous  anticlimax  ab- 
solutely disposed  of  the  witness,  who  retired  in 
favor  of  Colonel  Morgan. 

Morgan  was  a  distinguished  citizen  of  Penn- 
sylvania whom  Burr  had  visited  on  one  of  his 
western  trips,  and  he  repeated  several  heretical 
remarks  which  Burr  dropped  in  the  course  of 
conversation,  touching  the  weakness  of  the 
existing  government  and  the  instability  of  the 
Union.  The  Colonel  also  gave  a  highly  dra- 
matic account  of  how  Burr  had  sought  him  out 
one  night,  long  after  every  one  else  had  retired, 
to  ask  him  about  a  certain  man  who  had  been 
involved  in  disloyal  intrigues  some  years  before, 
and  then,  with  the  audience  keyed  up  to  the 
highest  pitch  of  expectation,  the  old  gentleman 
solemnly  averred  his  belief  that  Burr  would 
certainly  have  imbosomed  himself  of  treasona- 

54 


THE  UNITED  STATES  vs.   BURR 

ble  matter  on  that  occasion  had  he  received  any 
encouragement  I  As  it  was,  however,  he  had 
merely  gone  back  to  bed  without  divulging 
anything. 

Nothing  more  farcical  than  such  testimony 
was  ever  seriously  submitted  to  a  court  and 
jury,  and  under  modern  practice  it  would  be 
struck  from  the  record  as  irrelevant  and  ab- 
surd. Still  it  was  all  solemnly  received  and 
recorded,  and  the  end  was  not  yet,  for  Colonel 
Morgan's  two  sons  followed  their  father  on  the 
stand  with  testimony  concerning  Burr's  disre- 
spectful allusions  to  the  governmental  powers- 
that-were  and  his  contemptuous  opinions  touch- 
ing the  strength  of  the  existing  Union.  Such 
sentiments  were  doubtless  very  regrettable  and 
unpatriotic,  but  Burr  was  not  on  trial  for  his 
opinions,  and  not  one  word  in  the  testimony  of 
the  witnesses  convicted  him  of  anything  worse 
than  loose  talk. 

These  repeated  side  -  attacks  indicated  a 
strange  weakness  on  the  part  of  his  prosecu- 
tors, and  it  began  to  look  as  though  they  had 
reached  the  end  of  their  resources.  Finally, 
however,  a  Dutch  laborer  named  Allbright 
took  the  stand,  and  as  he  had  been  employed 
at    Blennerhassett's    Island,    expectation    was 

55 


DECISIVE   BATTLES  OF  THE  LAW 

again  aroused  that  Burr's  direct  complicity 
was  about  to  be  exposed.  Allbright  speedily 
proved  himself  a  stupid,  ignorant,  and  garru- 
lous witness,  but  that  was  about  all  he  suc- 
ceeded in  accomplishing,  and  the  few  facts  in 
his  possession  were  indisputably  in  favor  of 
the  accused.  Burr  had  explained  his  enterprise 
as  an  effort  to  settle  some  new  lands,  Allbright 
asserted,  and  the  recruits  gathered  at  the 
island  had  expressly  disclaimed  any  intention 
hostile  to  the  United  States,  stating  that  they 
were  to  move  against  the  Spanish.  These  men 
had  rifles  of  their  ow^n,  according  to  the  wit- 
ness, but  no  bayonets  or  stores  of  ammunition, 
and  they  were  neither  organized  nor  drilled  as 
soldiers. 

These  damaging  admissions  terminated  the 
usefulness  of  this  worthy  personage,  and  he 
gave  way  to  Blennerhassett's  groom,  who  con- 
tinued the  kitchen  gossip  begun  by  his  fellow- 
servant — an  utterly  futile  recital  from  a  legal 
stand-point.  He  knew  nothing  even  tending  to 
prove  a  treasonable  act  on  Burr's  part,  and 
the  stray  facts  scattered  through  his  testimony 
were  more  valuable  to  the  defence  than  to  the 
prosecution,  which  from  that  moment  began  to 
yield  all  along  the  line.     Witness  after  witness 

56 


THE   UNITED  STATEwS  vs.   BURR 

was   called   to   the   front   in   rapid  succession, 
evidently    with    the    purpose    of    proving    the 
magnitude   of   Burr's   preparations,    but   these 
men,  who  were  contractors,  boat-builders,  and 
other  mechanics  supposed  to  have  been  engaged 
in    equipping    a    formidable    army    and    navy, 
absolutely  refuted  the  stories  which  the  news- 
papers had   circulated    concerning    Burr's   im- 
posing forces  by  showing  that  his  expedition, 
though  fairly  supplied  for  colonization  purposes, 
was  inadequate  for  a  filibustering  venture  and 
absolutely  preposterous  as  an  army  of  invasion. 
One  would  think  that  this  testimony  should 
have  warned  the  District  Attorney  that  he  was 
on  dangerous  ground,  and  why  he  should  have 
rushed  blindly  ahead  along  the  same  Hnes  day 
after  day  is  more  than  any  one,  at  this  date, 
can  possibly  imagine.     Certainly  in  summoning 
Dudley  Woodbridge,  Blennerhassett's  agent,  to 
the  stand  he  courted  destruction;    and  the  in- 
evitable happened,   for  the  witness   promptly 
exposed  the  myth  of  Blennerhassett's  Golconda- 
like  fortune  with  prosaic  facts  and  figures  which 
proved  that  instead  of  being  fabulously  rich 
the  ''  Monte  Cristo  of  the  Ohio  "  was  not  worth 
much  more  than  $20,000,  very  little  of  which 
had  gone  into  Burr's  hands. 

57 


DECISIVE   BATTLES  OF  THE   LAW 

This  culminating  disaster  put  the  finishing 
touch  to  a  campaign  of  blunders,  and  the  forces 
of  the  government,  blocked  upon  every  side, 
halted  in  confusion.  General  Wilkinson,  the 
original  informer,  had  not  yet  been  called,  how- 
ever, and  both  sides  realized  that  if  this  redoubt- 
able but  extremely  vulnerable  ally  could  be 
manoeuvred  into  position,  the  tide  of  battle 
might  possibly  be  turned.  Wilkinson  admitted- 
ly knew  nothing  of  any  treasonable  act  on 
Burr's  part,  but  he  was  said  to  be  armed  with 
incriminating  cipher  despatches  and  other  cor- 
rupt communications,  of  which  he  had  given 
what  might  be  called  a  free  translation  in  the 
public  press,  and  on  paper,  at  least,  he  pre- 
sented a  formidable  showing.  To  effect  a 
juncture  with  him,  then,  was  the  only  possible 
move  for  the  prosecution,  and  on  this  it  con- 
centrated all  its  remaining  efforts.  The  de- 
fence, however,  was  keenly  alive  to  the  situa- 
tion, and  it  determined  at  all  hazards  to  prevent 
the  General  from  relieving  the  hard-pressed  foe. 
No  act  of  treason  had  been  proved  against  Burr, 
and  the  government  virtually  admitted  that  it 
had  exhausted  its  material  on  this  point. 
Therefore  it  was  contended  that  Wilkinson's 
alleged  information   of  the  defendant's  inten- 

58 


THE  UNITED  STATES  vs.   BURR 

tion  to  commit  a  crime  was  inadmissible  ac- 
cording to  the  laws  of  legal  warfare,  and  on 
this  issue,  which  had  been  foreshadowed  at  the 
ver}^  opening  of  hostilities,  Burr's  champions 
challenged  their  opponents  to  single  combat. 

A  more  remarkable  legal  tournament  than 
that  which  followed  the  acceptance  of  this  gage 
of  battle  has  never  been  witnessed  in  an  Amer- 
ican court. 

Wickham  for  the  defence  and  MacRae  for 
the  prosecution  were  the  first  to  enter  the  lists, 
and  their  fierce  collision,  though  less  spectacu- 
lar than  some  of  the  encounters  which  were  to 
follow,  was  obviously  a  duel  to  the  death, 
fought  with  grim  determination  by  trained 
antagonists  who  were  equal  masters  of  every 
legal  cut  and  thrust  and  parry,  and  after  three 
days  of  savage  fighting  neither  had  been  com- 
pelled to  bite  the  dust.  Then  Wirt  for  the 
prosecution  and  Botts  for  the  defence  took  the 
field,  and  the  champion  of  the  government 
speedily  obtained  an  advantage  over  his  an- 
tagonist, which  he  improved  during  the  entire 
encounter,  crowding  and  cornering  him  at  every 
move,  and  finally  riding  around  and  over  him 
almost  at  pleasure.  This  was  perhaps  the  most 
brilliant  performance  on  either  side,  and  Wirt 

S9 


DECISIVE  BATTLES  OF  THE  LAW 

certainly  won  historical  honors,  for  his  achieve- 
ment was  recorded  in  the  oratorical  text-books 
of  his  time  and  for  many  a  day  after.  With 
victory  thus  perched  upon  the  prosecution's 
banners,  Hay  dashed  into  the  fray,  riding 
atilt  at  Lee,  who  withstood  the  shock  and  more 
than  held  his  own,  until  at  the  end  of  six  days 
fighting  Luther  Martin,  the  reckless,  intem- 
perate volunteer  whom  Jefferson  had  denounced 
as  "that  Federal  bulldog,"  flung  himself  upon 
the  enemy,  and  something  very  like  a  general 
melee  followed.  Martin  entered  the  arena  not 
only  more  thoroughly  equipped  than  any  other 
contestant,  but  with  more  bitterness  and  per- 
sonal feeling  than  all  the  others  combined. 
He  hated  Jefferson,  and  he  threw  himself  into 
the  conflict  with  a  zealous  rage  which  nothing 
could  withstand.  For  two  whole  days  he  bore 
the  brunt  of  the  entire  conflict,  striking  like 
lightning  at  every  opening,  giving  no  quarter 
and  seeking  none — a  terror,  a  scourge,  and  a 
very  fury  of  assault,  and  when  Randolph  at 
last  joined  in  the  attack  the  day  was  lost  for 
the  prosecution,  and  he  and  Martin  swept  the 
field. 

It  was  not  until  the  following  morning,  how- 
ever, that  the  victory  was  officially  awarded  to 

60 


THE  UNITED  STATES  vs.   BURR 

the  defence,  when  the  Chief  Justice  in  an  ex- 
haustive and  masterful  opinion  dehvered  a 
decision  which  created  a  lasting  precedent, 
marked  an  epoch  in  American  law,  and  prac- 
tically dismissed  the  case  at  bar.  No  testimony 
relative  to  the  conduct  or  declarations  of  the 
defendant  elsewhere  and  subsequent  to  the 
transaction  at  Blennerhassett's  Island  could  be 
admitted  under  the  judge's  ruling,  and  the  gov- 
ernment confessing  that  it  had  no  further  proof 
at  its  disposal,  the  case  was  submitted  to  the 
jury  under  instructions  which  were  equivalent 
to  a  direction  to  acquit  the  accused. 

But  the  public,  hungering  for  a  victim,  was 
loath  to  believe  that  the  prosecution  had  lost 
the  day,  and  many  were  firmly  convinced  that 
the  jury  would  not  let  the  prisoner  go  un- 
scathed. And  it  did  not.  After  a  short  con- 
sultation the  twelve  ''good  men  and  true," 
who  had  sworn  to  administer  strict  justice  to 
the  accused,  returned  and  delivered  this  equivo- 
cal verdict: 

''We  of  the  jury  say,''  announced  Colonel 
Carrington,  the  foreman,  ''that  Aaron  Burr  is 
not  proved  to  he  guilty  under  the  indictment  by 
any  evidence  submitted  to  us.  We  therefore  find 
him  not  guilty.'' 

6i 


DECISIVE   BATTLES  OF  THE   LAW 

The  words  had  scarcely  left  the  speaker's 
lips  before  Burr  was  on  his  feet  indignantly 
protesting  that  no  "Scotch"  ("not  proven") 
verdict  could  be  received,  and  demanding  that 
the  jury  be  directed  to  report  the  verdict  of 
Not  Guilty  in  the  usual  form ;  and  the  fact  that 
this  just  demand  was  contested  by  the  prosecu- 
tion is  eloquent  of  the  spirit  in  which  the  whole 
prosecution  was  conducted.  Indeed,  during  the 
heated  discussion  which  followed,  some  of  the 
jurors  announced  that  nothing  would  induce 
them  to  change  the  form  of  their  verdict,  and 
the  Chief  Justice  therefore  promptly  took  the 
matter  into  his  own  hands  by  directing  that 
the  proper  verdict  be  entered  as  though  it 
had  been  rendered  in  lawful  form.  With  this 
act  of  simple  justice,  after  a  twenty-eight-day 
session,  the  court  adjourned,  and  the  great  cause 
ended. 

The  finding  of  "not  proven,"  however,  voiced 
the  popular  judgment  of  the  day.  Burr,  it  was 
understood,  had  escaped  by  some  technicality  or 
legal  legerdemain  which  had  enabled  him  to 
suppress  evidence  and  defeat  the  ends  of  justice. 
Had  Wilkinson  been  permitted  to  tell  his  story, 
it  was  generally  believed  that  the  prisoner  would 
have  been  convicted,   sentenced,   and  hanged. 

62 


THE  UNITED  STATES  vs.   BURR 

Even  after  Burr  was  brought  to  trial  on  the 
minor  charge  of  having  plotted  an  invasion  of 
the  Spanish  colonies,  and  Wilkinson  in  telling 
his  story  was  convicted  on  cross-examination  of 
having  mistranslated  and  otherwise  falsified  the 
mysterious  cipher  despatches,  there  was  no 
reaction  in  favor  of  the  accused,  and  his  second 
acquittal  merely  resulted  in  more  charges  of 
legal  trickery.  Indeed,  the  sneer  of  that 
*' Scotch"  verdict  pursued  Burr  to  his  grave, 
and  it  is  safe  to  say  that  its  suspicious  innuendo 
has  been  more  effective  than  all  the  tirades  of 
his  enemies  in  arming  posterity  against  him, 
until  to-day  his  name  is  popularly  linked  with 
that  of  Benedict  Arnold  in  the  list  of  national 
traitors. 

If  such  suspicions  are  justified,  however,  they 
should  long  since  have  been  proved  to  have  had 
some  foundation  in  fact.  History  has  been  busy 
during  the  past  century  with  all  the  principal 
actors  in  the  great  drama  of  Burr's  downfall, 
and  valuable  evidence  has  been  accumulated  on 
every  side.  Wilkinson  has  been  completely  un- 
masked and  discredited.  Jefferson  has  been 
proved  to  have  been  more  man  than  hero, 
Hamilton  has  been  shown  to  have  been  a  shrewd 
politician  as  well  as  an  able  statesman,  Marshall 

63 


DECISIVE  BATTLES  OF  THE  LAW 

has  been  forgotten  as  a  partisan  Federalist  and 
acclaimed  the  greatest  jurist  of  America,  but 
concerning  Aaron  Burr  not  one  particle  of  new 
incriminating  evidence  has  been  unearthed. 
All  that  is  known  against  him  is  recorded  in  the 
musty  legal  record  compiled  for  his  destruction ; 
and  read  without  bias,  passion,  or  prejudice  that 
mute  appeal  from  the  verdict  of  "not  proven" 
surely  invites  a  reversal  of  the  judgment  of  his 
peers. 


Ill 


THE   COMMONWEALTH   VS.   BROWN! 
THE     PRELUDE     TO     THE     CIVIL     WAR 

LOYALTY  to  the  soil  is  the  birthright  of 
-^  every  Virginian  and  local  pride  is  his  sec- 
ond nature.  For  him  the  State  has  no  rival 
save  his  county,  and  the  county  none  but  the 
city,  hamlet,  or  acreage  in  which  his  home  is 
enshrined.  Nevertheless,  if  any  one  had  pre- 
dicted on  October  19,  1859,  that  the  county- 
seat  of  Jefferson  County  was  on  the  eve  of 
world-wide  recognition,  even  the  stanchest  local 
champion  would  have  been  puzzled  by  the 
prophecy,  for  there  was  absolutely  nothing  to 
indicate  that  the  peaceful  little  village,  which 
had  slept  in  the  Shenandoah  Valley  for  more 
than  half  a  century,  would  ever  wake  to  find 
itself  famous.  Yet  within  twenty -four  hours 
the  eyes  of  the  world  were  turned  in  its  direc- 
tion, following  the  wounded  body  of  John  Brown 
as  it  was  borne  to  the  county  jail,  and  history 

65 


DECISIVE   BATTLES  OF  THE   LAW 

had  already  transcribed  the  name  of  Charles 
Town  upon  its  tablets. 

Even  after  the  event,  however,  it  is  doubtful 
if  any  Virginian  would  have  admitted  its  his- 
torical significance. 

A  band  of  miscreants,  inflamed  by  Abolition 
heresies,  had  invaded  the  Old  Dominion  to  in- 
cite rebellion  among  the  slaves.  As  a  nat- 
ural consequence  most  of  them  had  forfeited 
their  lives  on  the  spot,  and  the  survivors  had 
been  delivered  to  the  local  authorities  for  speedy 
trial  and  execution;  but,  to  the  majority  of  Vir- 
ginians, there  was  nothing  in  those  facts  which 
promised  to  confer  distinction  upon  the  seat  of 
justice. 

The  first  wild  gust  of  rage  and  indignation 
against  the  raiders  had  spent  itself  in  the  fero- 
cious slaughter  of  all  but  five  of  Brown's  party 
at  Haider's  FeiTy,  but  the  State  was  still  pal- 
pitating with  furious  excitement  when  Govern- 
or Wise  assumed  control  of  the  situation,  and  it 
was  universally  admitted  that  if  he  had  intrust- 
ed the  prisoners  to  the  State  instead  of  the  Fed- 
eral troops  not  one  of  them  would  have  reached 
the  jail  alive.  The  prompt  and  determined  ac- 
tion of  the  authorities  in  protecting  their  cap- 
tives was,  however,  thoroughly  understood,  and 

66 


THE  COMMONWEALTH  vs.   BROWN 

intelligent  public  opinion  throughout  the  State 
supported  and  practically  enforced  acquiescence 
in  the  government's  policy.  There  had  been 
enough,  and  more  than  enough,  of  summary 
punishment.  Virginian  honor  was  to  be  vin- 
dicated thereafter  by  Virginian  law  administered 
with  impressive  dignity  as  a  grim  and  terrible 
object-lesson  to  all  beholders,  and  it  was  plainly 
intimated  that  any  resort  to  mob  violence  would 
be  severely  dealt  with. 

This  calm  judicial  programme  did  not  meet 
with  universal  approval.  To  the  average  cit- 
izen any  one  guilty  of  inciting  the  horror  of 
a  servile  insurrection  was  an  outlaw — a  fiend 
in  human  shape  —  who  had  no  rights  which 
any  white  man  was  bound  to  respect,  and  the 
hotheads  among  the  groups  collected  about  the 
Carter  House  and  every  other  local  forum  in 
Charles  Town  were  in  no  mood  for  legal  for- 
malities or  delay.  Indeed,  had  it  not  been  for 
the  facts  that  tlie  Grand  Jury  was  already  in 
session  and  the  semi-annual  term  of  the  Cir- 
cuit Court  about  to  open,  it  is  extremely  doubt- 
ful if  the  law  would  have  been  allowed  to 
take  its  course.  There  was  a  general  impres- 
sion, however,  even  among  lawyers,  that  Brown 
and  his  confederates  could  be  indicted,  tried, 
6  67 


DECISIVE  BATTLES  OF  THE  LAW 

convicted,  sentenced,  and  probably  executed 
within  a  single  day;  but  before  it  was  dis- 
covered that  this  was  impracticable  under  the 
Virginian  code,  which  required  a  preliminary 
examination  on  five  days'  notice,  the  pris- 
oners had  been  secured  against  any  immediate 
attack. 

Those  five  days  of  enforced  inactivity  were 
prolific  of  rumors  and  alarms  of  the  most  sen- 
sational character,  and  the  military  guard  at 
the  jail  was  increased  in  response  to  the  rising 
popular  excitement.  At  first  it  was  reported 
that  Brown's  little  company  was  merely  the 
vanguard  of  a  mighty  Northern  army  sworn 
to  invade  and  humiliate  Virginia.  Next  it 
was  rumored  that  the  slaves  throughout  the 
State  had  been  tampered  with,  and  that  a 
secret  organization  among  them  was  planning 
a  revolt  of  hideous  and  diabolical  ferocity,  de- 
signed to  strike  terror  to  the  entire  slave -holding 
population  throughout  the  South.  Again  it 
was  reported  that  preparations  were  being  made 
on  every  side  to  effect  a  rescue  of  the  surviving 
captives,  and  that  the  Abolitionists  of  the  North 
w^ere  confident  of  defeating  the  administration  of 
justice  and  laughing  defiance  at  Virginian  law. 
No  story  was  too  wild  for  utterance  or  too  fan- 

68 


THE  COMMONWEALTH  vs.   BROWN 

tastic  for  belief,  and  as  each  new  arrival  at  the 
Carter  House  was  instantly  surrounded  by  ex- 
cited throngs  eager  to  welcome  every  word  from 
the  outside  world,  it  was  not  long  before  exag- 
geration and  imagination  became  the  chief 
ingredients  of  the  lurid  tales  which  passed  from 
lip  to  lip. 

Even  if  it  had  been  possible  to  contradict  all 
the  vague  reports  in  circulation  it  would  have 
been  idle  to  attempt  the  task.  No  Virginian 
could  believe  that  a  mere  handful  of  men  would 
try  what  Brown  had  attempted  without  def- 
inite assurances  of  support.  Instead  of  main- 
taining a  dignified  silence  and  allowing  the  out- 
raged South  to  inform  itself,  however,  the  most 
powerful  journals  of  the  North  played  upon  the 
fears  and  sensibilities  of  the  community  with 
impish  ingenuity,  and  some  of  the  most  violent 
Abolitionists  actually  descended  to  practical 
jokes  in  their  efforts  to  heighten  the  excitement 
and  spread  the  alarm. 

Under  these  circumstances  it  is  not  at  all 
surprising  that  the  once  peaceful  village  soon 
assumed  the  appearance  of  an  armed  camp. 
Every  other  man  on  the  highways  carried  a 
weapon  of  some  description;  lawyers,  farmers, 
and  other  visitors  hung  about  the  piazzas  and 

69 


DECISIVE   BATTLES  OF  THE   LAW 

corridors  of  the  hotel  with  rifles  or  shot-guns  in 
their  hands  and  miUtia  were  to  be  encountered 
at  every  turn.  The  vague  and  awful  rumors  of 
each  day  resulted  in  long,  sleepless  nights,  dread 
with  all  the  unnamable  possibilities  of  a  black 
uprising,  and  when  October  25th  dawned  Charles 
Town  was  already  astir  and  gathering  before  the 
jail  with  eager  expectation. 

But  the  civil  and  military  authorities  had 
been  upon  the  ground  before  the  public,  and 
the  earliest  arrivals  found  cannon  posted  be- 
fore the  court-house  and  every  approach  to  the 
building  guarded  by  armed  sentries.  Indeed, 
the  oldest  inhabitants  scarcely  recognized  the 
sleepy  old  village  as  they  issued  from  their 
houses  in  the  gray  of  that  autumn  morning. 
Martial  law  had  not  been  proclaimed,  but  the 
militia  were  evidently  in  complete  possession, 
and  on  every  side  there  were  signs  of  sinister 
preparation.  Even  the  crowds  that  began  to 
gather  in  the  early  hours  of  the  morning  in- 
cluded comparatively  few  familiar  faces,  for 
strangers  had  been  pouring  into  the  village  for 
days,  and  the  hotels,  the  post-office,  and  every 
other  public  meeting-place  were  already  over- 
run with  them.  Newspaper  representatives  cir- 
culated among  the  groups  gathered  before  the 

70 


THE  COMMONWEALTH  vs.   BROWN 

court-house,  button -holing  the  residents  for 
items  of  local  information,  but  except  for  their 
activity  there  was  very  little  movement  in  the 
crowds  which  hung  around  the  centres  of  in- 
terest discussing  the  situation,  or  whiling  away 
the  time  by  brushing  the  dry  leaves  about  in 
listless  search  for  fallen  chestnuts.  Here  and 
there  voices  were  raised  in  fierce  denunciation 
of  the  prisoners,  but  for  the  most  part  the  citizens 
conversed  in  low  tones  as  they  idled  under  the 
tall  spreading  trees,  and  a  sullen  quiet  pervaded 
the  atmosphere,  hazy  with  the  smoke  of  burn- 
ing leaves  and  heavy  with  their  pungent  odor. 
Hour  after  hour  passed  uneventfully  in  this 
fashion,  but  at  last  the  court-house  doors  were 
opened.  Only  those  nearest  the  entrance  gained 
admittance,  however,  for  the  first  eager  rush  was 
checked  by  the  troops,  and  none  but  those  who 
were  identified  to  the  sentries  were  permitted 
to  pass  thereafter. 

A  long  hour  of  waiting  followed,  and  the  ex- 
cluded public  hung  patiently  about  the  court- 
house steps,  massed  around  the  heavy  white 
Corinthian  columns  supporting  the  portico,  until 
the  bell  in  the  cupola  began  a  deep-toned  clang- 
ing. On  ordinary  court  days  this  summons 
served  to  warn  the  lawy^ers  and  others  gathered 

71 


DECISIVE   BATTLES  OF  THE   LAW 

at  the  Carter  House  that  the  legal  proceedings 
were  about  to  open;  and  those  having  busi- 
ness with  the  law  usually  sauntered  across  the 
road  to  the  court  -  house  with  characteristic 
deliberation.  But  on  this  occasion  the  hotel 
was  already  deserted  and  the  expectant  throng 
immediately  moved  towards  the  jail.  At  the 
same  moment  a  roll  of  drums  answered  the 
bell  and  a  double  file  of  soldiers  issued  from 
the  jail  door,  marching  in  column  of  twos  on 
either  side  of  the  short  path  leading  from  the 
jail  to  the  court-house,  where  they  halted  and 
faced  each  other.  The  rear  rank  of  each  file 
was  then  swung  to  the  right-about,  with  fixed 
bayonets,  and  rifles  loaded,  capped,  and  cocked, 
and  in  another  moment  the  command  ''Port 
arms!"  rang  out  sharply  in  the  still  autumn  air. 
Instantly  the  crowd  surged  about  the  troops, 
peering  eagerly  through  their  close  ranks  or 
craning  down  at  them  from  the  court-house 
steps;  and  as  the  soldiers  brought  their  pieces 
to  position,  the  sheriff  emerged  from  the  jail,  ac- 
companied by  Captain  Avis,  the  jailer,  and  two 
armed  guards.  There  was  a  moment's  delay, 
and  then  two  other  men  appeared  on  the  thresh- 
old, one  of  them  partially  supporting  the  other, 
an  old,  bareheaded  man  over  six  feet  in  height, 

72 


THE  COMMONWEALTH  vs.   BROWN 

his  head  swathed  in  blood-stained  bandages,  and 
his  face  as  gray  as  his  thick,  wiry  hair,  and  long 
unkempt  beard,  but  whose  piercing  blue-gray 
eyes  showed  no  trace  of  fear.  Instinctively  the 
soldiers  braced  themselves  to  withstand  a  rush 
if  the  crowd  should  attempt  to  hurl  itself  upon 
the  manacled  prisoner,  but  there  was  not  a 
hostile  movement  of  any  kind,  and  scarcely  a 
word  of  denunciation  was  flung  at  the  old  ring- 
leader as  he  tottered  down  the  closely  guarded 
aisle.  Doubtless  the  pitiably  feeble  condition 
of  the  man  and  his  fellow  -  captives  enforced 
the  silence,  and  certainly  their  appearance  was 
sufficiently  wretched  to  move  the  most  stony- 
hearted. Brown's  body  had  been  repeatedly 
pierced  by  sword-thrusts,  and  his  head  and  face 
had  been  slashed  by  sabre-cuts  almost  beyond 
recognition;  and  Stephens,  his  second  in  com- 
mand, had  three  musket  wounds  in  his  head, 
two  in  his  breast,  and  one  in  an  arm,  to  say 
nothing  of  a  ghastly  rip  across  his  forehead 
made  by  a  glancing  ball. 

The  little  procession  crept  slowly  along  the 
narrow  path,  for  the  prisoners  could  hardly  stand 
and  every  step  they  took  was  plainly  torture. 
Finally  they  reached  the  court-house  steps, 
mounted  them  with  evident  anguish,  and  in  a 

73 


DECISIVE   BATTLES  OF  THE  LAW 

few  moments  John  Brown  and  his  confederates 
faced  their  formal  accusers. 

There  was  nothing  very  impressive  in  the 
scene  which  greeted  the  fierce  old  campaigner  as 
his  restive  eyes  swept  the  crowded  court-room. 
The  majesty  of  the  law  at  Charles  Town  lacked 
all  the  trappings  which  favor  and  heighten 
dignity.  The  plain,  whitewashed  walls  smeared 
and  stained  with  head  and  hand  marks,  the  high, 
dirty,  curtainless  windows,  the  two  hideous 
wood-stoves  with  their  crude,  black,  crooked 
smoke-pipes,  the  bare,  dirty  floor  strewn  with 
peanut  and  chestnut  shells,  the  stifling  atmos- 
phere hea\^  with  the  odor  of  stale  tobacco  smoke 
and  the  respirations  of  five  or  six  hundred  closely 
wedged  spectators — ^none  of  the  surroundings 
or  conditions  was  calculated  to  command  re- 
spect or  to  inspire  heroism. 

Every  eye  in  the  room  centred  on  the  shackled 
prisoner,  and  in  the  mass  of  faces  turned  towards 
him  not  even  a  fleeting  expression  of  sympathy 
was  anywhere  discernible.  No  articulate  demon- 
stration of  hostility  had  greeted  his  entrance, 
but  the  silence  of  those  hundreds  of  men  who 
glared  at  him  from  every  nook  and  corner  of  the 
room  was  eloquent  of  the  implacable  hatred  he 
had  inspired.    Against  this  ominous  background, 

74 


THE  COMMONWEALTH  vs.   BROWN 

bristling  with  bayonets,  and  touched  here  and 
there  with  color  in  the  motley  uniforms  of  the 
miHtia,  a  few  individuals  loomed  out  of  the 
murky  atmosphere. 

On  the  chairs  behind  the  judicial  desk  sat 
eight  justices  of  the  peace,  forming  the  Board 
of  Magistrates,  whose  duty  it  was  to  examine 
the  accused,  dismiss  them  or  hold  them  for  the 
action  of  the  Grand  Jury.  Some  of  them  were 
men  of  character  and  standing  in  the  community, 
and  all  of  them  were  competent  for  their  purely 
formal  duties.  Before  the  bench  at  the  counsels' 
table  sat  a  hard-faced,  dissipated-looking  man 
with  a  sharp,  hooked  nose,  and  a  weak  chin 
covered  with  a  few  days'  growth  of  beard,  his 
hair  uncombed  and  timibled  and  his  clothes 
dirty  and  awry.  This  was  Charles  Harding, 
the  Commonwealth's  attorney — the  driftwood  \ 
of  some  political  stream  which  had  landed  him 
upon  Jefferson  County — sober  for  the  instant, 
but  incapable  by  habit,  temperament,  or  educa- 
tion of  conducting  any  but  the  most  perfunctory 
of  official  duties.  Near  this  legal  wreck  sat  a 
man  of  singularly  distinguished  appearance,  tall, 
handsome,  alert,  and  vigorous — his  clean-shaven, 
refined  face  and  clear,  intelligent  eyes  contrast- 
ing strangely  with  the  coarse-grained  individual 

75 


DECISIVE   BATTLES  OF  THE  LAW 

beside  him.  This  was  Andrew  Hunter,  an  able 
member  of  the  Virginian  bar,  designated  by 
Governor  Wise  as  special  prosecutor  for  the 
occasion,  and  destined,  by  reason  of  this  appoint- 
ment, to  be  the  most  important  character  in 
all  Virginia  for  many  a  day  thereafter.  Within 
the  counsels'  rail,  and  not  far  from  these  legal 
liuninaries,  sat  a  gentleman  of  the  old  school, 
whose  calm  face,  aristocratic  bearing,  and  person- 
al distinction  marked  him  as  a  man  apart;  for 
Colonel  Lewis  Washington  looked  as  though  he 
might  have  stepped  out  of  Trumbull's  portrait  of 
his  great-uncle  George,  whose  family  had  found- 
ed Charles  Town  almost  half  a  century  before. 

Probably  this  distinguished  Virginian  was  one 
of  the  very  few  that  old  Brown  recognized  in  the 
blur  of  faces  turned  towards  him  as  he  tottered 
into  the  silent  court-room,  for  the  Colonel  had 
been  one  of  the  slave  -  owners  kidnapped  as 
hostages  just  prior  to  the  raid,  and  he  and  his 
captor  had  held  much  conversation  during  their 
enforced  companionship.  Indeed,  the  sword 
which  Brown  had  "appropriated"  for  the  occa- 
sion and  proudly  borne  during  the  siege  of  the 
engine-house  was  Colonel  Washington's  property 
and  was  reputedly  one  of  the  President's  pres- 
entation blades. 

76 


THE  COMMONWEALTH  vs.   BROWN 

But  perhaps  the  most  striking  personaHty  of 
all  those  projected  from  the  dark  human  canvas 
was  that  of  the  tall  military  individual  who  stood 
near  the  bench — a  rather  pompous  and  self-im- 
portant figure  of  a  man,  clothed  in  what  ap- 
peared to  be  a  uniform  of  some  character  and 
bearing  an  old-fashioned  rifle  in  his  clutch.  A 
mass  of  luxuriant  whiskers  and  a  flowing  mus- 
tache covered  a  large  portion  of  this  singular 
person's  countenance,  and  his  long,  straight 
hair,  brushed  back  into  a  species  of  double  queue, 
was  looped  in  some  curious  fashion  so  that  the 
braided  strands  encircled  his  head  and  joined  in 
a  bow-knot  in  the  centre  of  his  forehead.  This 
was  no  less  a  personage  than  Colonel  J.  Lucius 
Davis — a  noted  duellist — a  relic  of  a  passing 
period  of  Virginian  chivalry,  and,  for  the  time 
being,  military  major-domo  and  sergeant -at - 
arms. 

Very  little  time  was  wasted  in  formally  ar- 
raigning the  prisoners  at  the  bar.  In  rough  and 
clumsy  fashion  Harding,  the  local  prosecutor, 
opened  the  proceedings  by  demanding  that  the 
prisoners  state  whether  they  were  represented 
by  counsel  or  whether  they  wished  counsel  to  be 
assigned  them  by  the  court.  Every  word,  tone, 
and  gesture  of  the  coarse  little  administrator  of 

77 


DECISIVE   BATTLES  OF  THE   LAW 

the  law  indicated  his  attitude  towards  the  busi- 
ness in  hand.  Quick  work  and  no  ceremony  was 
to  be  the  order  of  the  day.  This  was  his  hour 
to  swagger  in  the  pubhc  eye,  and  he  doubtless 
argued  that  the  effect  would  be  heightened  by  a 
display  of  official  austerity  and  roughness. 
Something  of  this  must  have  been  vaguely  con- 
veyed to  the  gaunt,  haggard  old  man  at  whom 
the  prosecutor  aimed  his  inquiry,  for  with  a  su- 
preme effort  he  rose  from  his  chair,  his  blazing 
eyes  directed  not  at  the  bench  or  at  any  par- 
ticular individual,  but  comprehending  the  en- 
tire audience  in  their  sweep.  Even  in  his  en- 
feebled condition  he  was  still  a  magnificent 
figure — rough-hewn  but  Titanic,  patriarchal  but 
aggressive — his  strongly  Hebraic  features  show- 
ing passion,  purpose,  courage,  and  relentlessness 
in  every  line. 

''Virginians!"  he  began,  and  his  low  well- 
modulated  voice  reached  every  comer  of  the 
court-room  in  the  deathlike  silence:  "  Virginians! 
I  did  not  ask  for  quarter  at  the  time  I  was  taken. 
I  did  not  ask  to  have  my  life  spared.  ...  If  you 
seek  my  blood  you  can  have  it  at  any  moment 
without  this  mockery  of  a  trial.  I  have  no 
counsel.  ...  If  we  are  to  be  forced  with  a  mere 
form — a  trial  for  execution — you  might  spare 

78 


THE  COMMONWEALTH  vs.   BROWN 

yourself  that  trouble.  I  am  ready  for  my  fate. 
...  I  beg  for  no  insult — nothing  but  that  which 
conscience  gives  or  cowardice  drives  you  to 
practise.  I  ask  again  to  be  excused  the  mock- 
ery of  a  trial.  I  do  not  even  know  what  the 
special  design  of  this  examination  is.  I  do  not 
know  what  is  to  be  the  benefit  of  it  to  the  Com- 
monwealth. I  have  now  little  further  to  ask, 
other  than  that  I  may  not  be  foolishly  insulted." 

The  speaker  swayed  and  sank  into  his  chair 
again,  but  every  word  of  his  brief  utterance  was 
aimed  at  the  pride  of  Virginia,  and  it  found  its 
mark.  It  was  the  courageous  defiance  of  a  man 
at  bay,  ready  for  death,  but  supremely  conscious 
of  his  own  dignity;  and,  for  the  instant,  some- 
thing akin  to  respect  for  the  old  fanatic  kindled 
in  the  minds  of  his  auditors.  Indeed,  if  there 
had  been,  up  to  that  moment,  any  thought  of 
satisfying  the  public  conscience  with  the  form 
instead  of  the  substance  of  a  trial,  that  dramatic 
challenge  disposed  of  it  on  the  instant,  and 
before  the  wondering  whispers  of  the  audience 
ceased  Brown  had,  by  sheer  force  of  his  per- 
sonality, accomplished  for  himself  what  no 
lawyer  could  have  secured  him — namely,  a  fair 
field,  if  no  favor. 

With   this   effective   prelude   the   formalities 

79 


DECISIVE  BATTLES  OF  THE  LAW 

before  the  committing  magistrates  were  im- 
mediately inaugurated  and  speedily  concluded. 
Messrs.  Lawson  Botts  and  Charles  J.  Faulkner, 
of  the  local  bar,  were  assigned  as  counsel  for  the 
accused,  a  perfunctory  examination  of  witnesses 
was  conducted  by  Harding,  and  the  prisoners 
promptly  held  for  the  action  of  the  Grand  Jury, 
which,  being  already  in  session,  quickly  returned 
indictments  for  treason,  inciting  slaves  to  rebel- 
lion, and  for  murder,  each  offence  being  punish- 
able with  death.  Indeed,  there  was  scarcely  a 
creak  in  the  carefulty  oiled  machinery  of  the 
law,  and  within  twenty-four  hours  of  his  first 
arraignment  John  Brown  was  called  to  face  a 
jury  of  his  peers. 

Before  another  day  had  passed,  however, 
the  prosecution  was  to  learn  that  there  was 
something  more  important  at  stake  than  a 
speedy  conviction,  and  every  day  the  proceed- 
ings lasted  was  to  drive  this  lesson  home.  But 
the  public,  believing  that  the  first  day  of  the 
trial  would  be  the  last,  determined  not  to  miss 
what  might  be  its  only  chance  for  viewing  the 
criminal  at  close  range,  and  the  crowd  massed  in 
front  of  the  jail  on  the  second  court  day  was  even 
greater  than  that  which  witnessed  the  prisoner's 
first  appearance. 

80 


THE  COMMONWEALTH  vs.   BROWN 

Again  the  crude  and  dirty  court-room  was 
crowded  to  its  utmost  capacity,  and  even  the 
windows  choked  with  lowering  humanity;  but  in 
some  particulars  the  aspect  of  the  place  had  un- 
dergone a  transformation  since  the  prisoner  first 
passed  its  threshold. 

Behind  the  judicial  desk  sat  Richard  Parker, 
a  jurist  of  experience  and  ability,  the  third  of  his 
name  to  occupy  the  bench.  Short,  almost 
diminutive  of  stature,  his  was  still  a  command- 
ing presence — his  face  stern,  but  with  clear-cut 
features  bespeaking  courage,  conviction,  and 
strong,  forceful  character.  In  age,  physique, 
and  mentality  Judge  Parker  was  in  his  prime, 
and  although  he  was  by  tradition,  birth,  and 
training  strongly  in  sympathy  with  the  thought 
and  principles  of  his  State,  no  fairer  presiding 
officer  could  have  been  selected  within  the  limits 
of  Virginia. 

Among  the  densely  massed  spectators  sat 
James  Mason,  United  States  Senator  from  Vir- 
ginia and  author  of  the  Fugitive- Slave  I^aw, 
a  fierce,  eager,  passionate  partisan  of  the  South, 
who  had  flown  to  Harper's  Ferry  at  the  earliest 
possible  moment  and  hungrily  cross-examined 
Brown,  as  he  lay  weltering  in  his  blood,  hoping 
to  secure  incriminating  evidence  against  some 

8i 


DECISIVE   BATTLES  OF  THE   LAW 

of  the  Black  Republicans,  and  this  was  un- 
doubtedly the  explanation  of  his  presence  in  the 
court-room. 

Over  the  counsels'  table  leaned  Lawson  Botts/ 
the  prisoner's  thin,  active,  wiry  lawyer,  who  sat 
waiting  the  arrival  of  his  client,  his  legs  coiled 
around  the  legs  of  his  chair,  and  his  body  bent 
forward  in  a  characteristic  posture  as  though 
poised  for  a  spring ;  and  by  his  side  sat  the  Mayor 
of  Charles  Town,  Thomas  Green, ^  the  successor 
of  Mr.  Faulkner,  who  had  declined  the  ungrate- 
ful task  of  defending  a  man  whom  he  had  per- 
sonally attempted  to  kill  or  capture  at  Harper's 
Ferry.  The  new  counsel  for  the  prisoner  was  a 
long,  angular,  uncouth  limb  of  the  law  of  sin- 
gular appearance  and  no  little  oddity  of  manner, 
but  a  man  of  considerable  ability,  who  was  to 
prove  before  many  hours  had  passed  that  he 

^  Lawson  Botts,  who  was  thirty-six  years  old  at  the  time  of 
Brown's  trial,  was  a  grandson  of  Benjamin  Botts,  who  de- 
fended Aaron  Burr.  He  entered  the  Confederate  army  as  a 
captain  and  immediately  distinguished  himself  in  the  field, 
being  promoted  to  the  rank  of  colonel  for  conspicuous  gallantry. 
He  was  mortally  wounded  at  the  second  battle  of  Manassas, 
August  28,   1862. 

2  Thomas  C.  Green  served  in  the  Confederate  army  as  a  private 
under  Major  Botts  during  the  Civil  War  and  saw  hard  service. 
He  was  appointed  to  the  bench  in  1875,  serving  in  the  Supreme 
Court  of  Appeals  (West  Virginia)  with  great  distinction  until 
his  death  in  1889.  He  was  in  his  thirty-ninth  year  at  the  time 
of  Brown's  trial. 

82 


THE  COMMONWEALTH  vs.   BROWN 

possessed  a  quick  wit  and  such  a  flow  of  language 
that  he  seemed  to  speak  ''  whole  sentences  abreast 
of  each  other"  in  the  rush  and  tumble  of  his 
words. 

Harding,  the  local  functionary,  had  already 
yielded  precedence  to  Andrew  Hunter,  the  special 
prosecutor,  and  with  a  few  spasmodic  efforts  to 
assert  his  authority,  he  gradually  lapsed  into  the 
background,  against  which  he  was  occasionally 
discerned  sleeping  off  his  potations,  totally  ob- 
livious to  his  surroundings. 

A  rough  cot  had  been  placed  on  the  floor 
within  the  counsels'  railing  and  almost  directly 
before  the  bench,  for  the  previous  day's  ex- 
perience had  proved  too  much  for  the  wounded 
prisoner  and  he  could  no  longer  even  stand  with- 
out assistance.  Immediately  upon  his  entrance 
he  made  a  brief  appeal  for  a  postponement  of 
the  trial  on  account  of  his  physical  weakness, 
but  it  was  disregarded,  and  two  men  lifted  him 
to  his  feet  and  supported  him  while  the  lengthy 
indictment  was  read  and  his  plea  of  ''not 
guilty"  entered,  whereupon  he  immediately  sank 
upon  his  couch,  drew  a  blanket  about  him, 
closed  his  eyes,  and  rarely  opened  them  again 
during  the  day's  proceedings. 

Left  to  themselves  in  this  fashion,  the  lawyers 
7  83 


DECISIVE   BATTLES   OF  THE  LAW 

for  the  defence  faced  a  task  of  unparalleled  dif- 
ficulty, presenting  an  opportunity  for  fame  un- 
equalled in  the  history  of  the  law,  but  requiring 
a  man  as  great  as  the  occasion.  Probably  no 
member  of  the  Virginian  bar  and  possibly  no 
advocate  anywhere  in  the  country  could  have 
risen  to  the  emergency,  and  it  would  have  been 
unreasonable,  under  the  circumstances, to  expect 
the  two  Virginians  charged  with  the  defence  to 
imperil  themselves  in  such  a  cause.  Both  men 
undoubtedly  loathed  Brown  and  all  his  works, 
but  even  if  they  had  doubted  his  guilt  under  the 
law,  his  policy  of  bold  admission  and  his  utter 
indifference  to  the  result  would  have  chilled 
the  finest  enthusiasm.  Each  of  them  made 
earnest  pleas  for  a  postponement  of  the  trial 
before  a  jury  was  impanelled,  urging  their  client's 
condition  and  their  absolute  lack  of  all  oppor- 
tunity for  examining  the  indictment  or  other- 
wise preparing  for  the  defence;  but  Mr.  Hunter 
stoutly  objected  to  any  delay,  dwelling  upon 
the  need  of  swift  justice  to  demonstrate  the  effi- 
ciency of  the  law,  and  Harding  appealed  to  the 
worst  fears  of  the  community  by  vague  reference 
to  impending  rescues  and  negro  insurrections. 
Finally  the  judge  called  the  prison  doctor  to  the 
stand,    who   cheerfully   testified   that   the   ap- 

84 


THE  COMMONWEALTH  vs,   BROWN 

parently  unconscious  man  at  his  feet  was  in  a 
fit  condition  to  fight  for  his  Hfe,  whereupon  the 
request  for  delay  was  denied  and  the  impanelUng 
of  a  jury  promptly  directed. 

Had  the  talesmen  been  strictly  examined  and 
challenged  it  is  extremely  doubtful  if  one  wholly 
unprejudiced  juror  could  have  been  secured  in 
the  entire  county,  but  it  is  probable  that  the 
men  who  were  finally  sworn  into  the  jury-box 
were  as  well  qualified  as  any  other  Virginians. 
Some  of  them  were  slave-holders,  but  not  all, 
and  as,  under  the  practice,  twenty-four  were 
originally  selected,  of  which  the  defence  had  the 
right  to  strike  out  eight  and  select  twelve  by 
lot,  the  prisoner  was  fairly  protected  by  the 
statutes.  Any  attome}^  who  had  insisted  upon 
more  than  the  letter  of  the  law  on  such  an 
occasion  would  have  been  overruled  and  his 
protests  would  have  served  no  useful  purpose. 
Even  as  it  was,  a  competent  jury  was  not  ob- 
tained until  nightfall,  and  the  prosecution  did 
not  fairly  open  until  the  following  day. 

As  soon  as  the  court  resumed  business  the 
next  morning  Mr.  Botts  arose  on  behalf  of 
his  client  with  the  announcement  that  he  had 
received  information  by  telegraph  that  there 
was  insanity  in   Brown's  family.     He  desired 

85 


DECISIVE   BATTLES  OF  THE   LAW 

time,  he  declared,  to  investigate  the  vseeming- 
ly  well  -  supported  statement  of  the  prisoner's 
mental  incapacity ;  but  in  the  midst  of  his  ear- 
nest plea  for  an  adjournment  he  was  interrupt- 
ed in  the  most  unexpected  manner,  for  with  a 
supreme  effort  the  prisoner  struggled  up  from 
his  pallet  and  demanded  a  hearing  from  the 
court. 

The  old  man's  face  was  drawn  and  haggard 
with  suffering,  but  his  eyes  blazed  with  excite- 
ment as  he  raised  himself  to  a  sitting  posture, 
and  supporting  his  body  with  his  long,  muscular 
arms,  gazed  intently  at  the  bench.  Then,  in  a 
voice  shaken  with  emotion,  but  with  every 
mental  faculty  evidently  on  the  alert,  he  re- 
pudiated his  lawyer's  plea,  explaining  with 
convincing  clearness  that  there  was  no  insanity 
in  his  father's  family,  although,  as  his  counsel 
had  stated,  some  of  his  mother's  family,  his  first 
wife,  and  some  of  her  children  had  been  men- 
tally afflicted,  and  this  short  explanation  ended 
with  a  scornful  refusal  to  countenance  any  sub- 
terfuge in  his  behalf. 

A  murmur  of  astonishment  burst  from  the 
dense  audience  as  the  speaker  concluded,  and 
drawing  his  blanket  closely  around  him,  again 
sank   into   a   recumbent   position.     What  was 

86 


THE   COMMONWEALTH  vs.   BROWN 

the  meaning  of  this  performance?  Everybody 
had  supposed  that  the  old  scoundrel  was  ''  play- 
ing possum"  to  waste  time,  but  here  was  a 
chance  to  drag  matters  along  indefinitely  and 
he  refused  to  take  it !  What  sort  of  a  game  was 
he  up  to,  anyway  ? 

But  the  game  which  the  wounded  fanatic  had 
in  mind  was  altogether  beyond  the  compre- 
hension of  the  questioners,  and  they  little  dream- 
ed that  this  was  the  one  agonizingly  crucial 
moment  of  the  whole  trial  to  him ;  for  between 
the  wild  nightmare  of  the  Harper's  Ferry  raid 
and  the  dawn  of  his  arraignment,  John  Brown 
had  dreamed  a  strange  and  wonderful  dream, 
and  the  dream  was  proving  true. 

He  was  no  longer  an  avenging  fury,  but  a 
pawn  in  a  mighty  contest  projected  in  his  men- 
tal vision,  and  his  the  opening  move.  Would 
his  foes  refuse  his  lead  or  would  they  accept  it 
and  sweep  him  from  the  board  ?  On  one  hand 
the  ignominious  madhouse  yawned  —  on  the 
other  the  glorious  gallows.  Futile  commisera- 
tion and  contempt  or  inspiring  martyrdom  was 
to  be  his  portion,  and  the  issue  hung  on  a  thread 
during  the  breathless  hush  that  followed  his 
surprising  outburst.  Not  his  fate  alone  trem- 
bled in  the  balance.     Virginia,  straining  every 

87 


DECISIVE   BATTLES  OF  THE  LAW 

nerve  to  make  an  example  of  him,  had  it  in  her 
power  to  punish  him  as  no  culprit  had  ever 
been  punished  before.  Would  she  seize  her 
opportunity?  No  wonder  beads  of  perspira- 
tion moistened  the  prisoner's  forehead  as  he 
lay  huddled  under  his  crumpled  blanket. 

In  the  hush  of  expectation  Mr.  Green  rose  to 
confess  his  embarrassment  in  urging  a  defence 
which  had  been  openly  repudiated  by  his  client, 
yet  he  felt  that  the  existing  circumstances  de- 
manded investigation,  and  with  some  vigor  he 
proclaimed  his  views  upon  the  point.  Mr. 
Hunter  was,  however,  of  a  different  opinion, 
and  with  extreme  professional  courtesy  and 
considerable  prolixity,  the  question  was  bat- 
tledored  and  shuttlecocked  between  him  and 
his  opponents.  Finally  His  Honor  interfered 
by  observing  that  there  was  no  legal  ques- 
tion before  the  court  in  the  absence  of  sworn 
statements  supporting  the  defence  of  insan- 
ity, and  the  trial  must  therefore  proceed  forth- 
with. 

What  a  sensation  of  relief  that  momentous 
decision  must  have  afforded  the  anxious  de- 
fendant as  he  lay  extended  on  his  prison  cot! 
All  danger  of  being  ignobly  relegated  to  a  mad- 
house  was   over,    and   the   burning   eyes   that 

88 


THE   COMMONWEALTH  vs,   BROWN 

glittered  from  his  coverlet  closed  in  seeming 
slumber,  not  to  re-open  during  the  remainder  of 
the  day.  From  that  hour  it  was  no  longer  John 
Brown  but  Virginia  that  stood  on  trial. 

It  was  still  early  in  the  morning  when  this 
crisis  passed,  and  Harding  being  in  a  condition 
to  assert  his  prerogative,  made  the  opening 
address  to  the  jury.  His  denunciation  of  the 
criminal  was  followed  in  due  course  by  a  con- 
servative plea  from  Messrs.  Botts  and  Green, 
which  Mr.  Hunter  duly  tore  to  pieces  in  his  turn; 
by  which  time  the  jurors  were  thoroughly  ad- 
vised of  all  they  had  known  before  they  en- 
tered the  jury-box  and  no  more,  for  the  main 
facts  of  the  Harper's  Ferry  raid  had  been  fa- 
miliar to  every  man,  woman,  and  child  in  Vir- 
ginia for  days,  and  the  counsel  for  the  prisoner 
had  had  no  opportunity  to  devise  any  compre- 
hensible theory  of  defence. 

The  speeches  finished,  Mr.  Hunter  lost  no 
time  in  producing  witnesses  to  support  his  story, 
and  man  after  man  took  the  stand  and  swore  to 
the  events  at  Harper's  Ferry  on  the  i6th,  17th, 
and  1 8th  of  October.  One  version  of  the  affair 
was  much  like  another,  but  the  personality  of 
each  witness  was  strongly  in  evidence.  Some 
were  scrupulously  careful  to  give  nothing  but 

89 


DECISIVE   BATTLES  OF  THE   LAW 

the  facts,  while  others  obviously  stretched  the 
tnith  in  their  anxiety  to  damage  the  defendant. 
In  the  main,  however,  the  history  of  the  raid 
was  as  clearly  recounted  then  as  it  has  ever  been 
since. 

On  the  night  of  October  i6,  1859,  a  small 
party  of  men  under  Brown  had  descended  on 
Harper's  Ferry,  where  they  had  separated,  some 
seizing  the  railroad  bridge,  others  taking  posses- 
sion of  the  United  States  Arsenal,  and  still 
others  visiting  the  plantations  of  local  slave- 
owners, whose  persons  and  slaves  they  took  into 
custody.  Early  the  next  morning  a  railroad 
train  had  been  held  up  at  the  bridge,  and  during 
an  altercation  a  negro  railroad  employe  had 
been  shot.  Shortly  after  this  casualty  the 
town  was  aroused,  the  militia  was  summoned, 
and  desultory  firmg  began  between  the  citizens 
and  isolated  detachments  of  the  raiders,  during 
which  several  persons  on  both  sides  were  killed 
or  wounded.  Finally  Brown  and  a  few  of  his 
followers  had  barricaded  themselves  with  their 
prisoners  in  the  engine-house  near  the '  United 
States  Arsenal,  where  they  were  surrounded  by 
the  citizens  and  military  and  cut  off  from  all 
escape.  Again  and  again  during  the  siege  that 
followed.    Brown   had   attempted   to   negotiate 

90 


THE  COMMONWEALTH  vs.  BROWN 

with  his  assailants,  but  his  flags  of  truce  had  been 
rexjeatedly  disregarded,  and  the  men  who  bore 
them  either  captured  or  shot,  and  during  the 
firing  Mr.  Fontaine  Beckham,  the  Mayor  of 
Harper's  Ferry,  had  fallen  mortally  wounded. 

Finally,  some  thirty-six  hours  after  Brown 
had  entered  the  town,  a  company  of  United 
States  Marines  under  Colonel  Robert  E.  Lee  and 
Lieutenant  J.  E.  B.  Stuart  stormed  the  engine- 
house'  and  either  killed  or  captured  the  de- 
fenders. Brown  himself  being  sabred  as  he  stood 
defenceless  just  inside  the  door.  Twelve  of  his 
men  had  been  killed,  including  two  of  his  sons, 
two  were  wounded,  and  one  escaped ;  and  of  the 
attacking  citizens  five  were  dead  and  nine 
wounded. 

Such,  in  outline,  was  the  story  of  the  affair  as 
told  by  eye-witnesses,  and  the  oral  testimony 
was  then  supplemented  by  a  copy  of  the  curious 
"Constitution  and  Ordinances"  which  Brown 
had  drawn  up  for  the  government  of  his  follow- 
ers,  and  for  the  reconstruction  of  the  United 


*  The  capture  having  been  made  by  United  States  troops  on 
United  States  property,  the  jurisdiction  would  seem  to  have 
been  that  of  the  Federal  and  not  the  State  courts.  Indeed,  one 
of  the  prisoners  was  indicted  in  the  United  States  courts,  and  it 
would  have  been  a  shrewd  political  move  to  have  thrown  the 
onus  of  the  whole  business  on  the  national  authorities. 

91 


DECISIVE   BATTLES  OF  THE   LAW 

States  Constitution  ''through  amendment  and 
repeal."  Letters  were  also  introduced  from 
Joshua  R.  Giddings,  the  Abolitionist  member  of 
Congress  from  Ohio,  for  whose  head  one  of  the 
Richmond  journals  subsequently  advertised  a 
reward  of  ten  thousand  dollars,  and  these,  with 
a  document  called  Brown's  autobiography  and 
some  communications  from  Gerrit  Smith,  the 
Boston  Abolitionist,  completed  the  documen- 
tary evidence;  and  at  the  end  of  two  short 
sessions  the  prosecution  closed  its  case. 

Before  this  point  had  been  reached,  however, 
an  incident  occurred  which  reawakened  all  the 
slumbering  fears  and  suspicions  of  the  com- 
munity and  deepened  the  intense  feeling  against 
the  accused.  On  the  third  morning  of  the  trial 
a  young  man  appeared  in  the  court-room  who 
introduced  himself  as  George  Henry  Hoyt,  of 
Boston,  and  announced  that  he  had  come  from 
Massachusetts  to  offer  his  professional  services 
to  the  defence.  Neither  Brown  nor  any  one 
else  in  Charles  Town  knew  this  volunteer  coun- 
sel, and  Messrs.  Botts  and  Green  at  first  de- 
clined his  assistance,  though  they  finally  yielded 
at  the  request  of  their  client.  But  Andrew 
Hunter  mistrusted  this  strange  intrusion,  and 
shrewdly  suspecting  that  a  mere  boy  like  Hoyt 

92 


THE   COMMONWEALTH  vs.   BROWN 

might  not  be  qualified  for  legal  duties,  he 
promptly  challenged  his  right  to  practise  in  the 
courts,  and  the  visitor  was  utterly  unable  to 
substantiate  his  claim  to  membership  in  the 
bar.  At  this  juncture  Judge  Parker  inter- 
vened, suggesting  that  formal  proof  be  dis- 
pensed with,  and  the  stranger,  who  was  only 
just  of  age  and  extremely  boyish  for  his  years, 
was  sworn  in  as  associate  counsel  for  the  de- 
fence. 

Hoyt's  reception  raised  a  violent  storm  of 
protest  and  indignation  in  the  Northern  press, 
and  Brown's  biographers  have  almost  universally 
assailed  Hunter  for  his  professional  discourtesy 
and  generally  overbearing  conduct  towards  the 
representative  of  the  Massachusetts  bar.  Had 
they  been  informed  of  that  innocent  young  gen- 
tleman's real  purpose,  however,  they  might 
have  suspended  their  attacks  upon  the  official 
prosecutor;  and  had  the  latter  known,  instead 
of  merely  suspected,  that  the  legal  fledgling  was 
the  agent  of  a  rescue  party  instructed  to  make 
drawings  of  the  jail  and  its  defences,  it  is  ex- 
tremely doubtful  if  George  Henry  Hoyt  would 
have  ever  left  the  town  alive.  Nevertheless,  it 
is  now  well  established  that  the  young  man's 
sole  mission  in  Charles  Town  was  to  obtain  in- 

93 


DECISIVE   BATTLES  OF  THE   LAW 

formation  concerning  the  feasibility  of  Brown's 
rescue,  and  that,  inspired  by  enthusiasm  for  the 
AboHtion  cause,  he  had  taken  his  life  in  his  hands 
and  accepted  the  service,  little  dreaming  of  the 
responsibilities  which  his  role  of  counsel  was  soon 
to  entail  upon  him. 

It  was  only  a  few  hours  after  young  Hoyt 
appeared  in  Charles  Town  that  the  prosecution 
rested,  and  it  at  once  became  necessary  for 
Brown's  lawyers  to  formulate  some  sort  of  a 
defence.  Destitute  as  they  were  of  material,  it 
would  still  have  been  possible  for  the  Virginian 
counsel  to  have  made  a  respectable  showing  on 
law  points  had  it  not  been  for  their  client's  ex- 
traordinary notions  of  the  lines  upon  which  the 
so-called  defence  should  be  conducted,  and  his 
utter  rejection  of  all  plans  except  his  own. 

During  his  incarceration  the  old  man  had  pre- 
pared a  list  of  witnesses,  which  included  most  of 
the  slave-holding  citizens  he  had  held  as  hostages, 
and  he  directed  that  these  men  should  be  sub- 
poenaed to  testify  to  his  humane  treatment  of 
them,  and  his  endeavor  to  shield  them  and  pre- 
vent the  shedding  of  blood.  No  direct  or  con- 
vincing proof  had  been  offered  to  show  that  he 
had  slain  or  even  injured  any  one  during  the 
fighting,  and  some  of  the  Commonwealth's  wit- 

94 


THE  COMMONWEALTH  vs.   BROWN 

nesses  had  already  asserted  that  his  orders  were 
to  act  solely  on  the  defensive;  but  from  a  legal 
stand-point  the  proposed  testimony  was  irrele- 
vant, if  not  absurd,  and  Messrs.  Botts  and  Green 
protested  against  such  futile  tactics. 

But  Brown  knew  what  he  was  attempting  to 
accomplish  even  if  his  counsel  did  not.  He 
cherished  no  illusions  as  to  the  effect  of  such  a 
defence  upon  the  jury  or  upon  any  one  in  Vir- 
ginia, but  he  had  determined  to  place  himself 
upon  record  before  the  people  of  the  North  and 
it  was  to  them  that  his  plea  was  directed. 
Pursuant  to  his  request,  several  witnesses  were 
summoned  and  responded  to  the  call,  but  the 
very  first  questions  addressed  to  them  met  with 
strenuous  objection  from  the  prosecutor.  What 
difference  would  it  make,  he  demanded,  if  a 
thousand  witnesses  should  testify  to  the  de- 
fendant's kind  attentions  to  his  prisoners  or  his 
merciful  instructions  to  his  accomplices  ?  There 
would  be  nothing  in  those  facts  which  the  jury 
could  consider.  Such  testimony  was  a  sheer 
waste  of  time. 

Unanswerable  as  this  argument  was,  the  law- 
yers persisted,  and  Brown's  consideration  for 
his  prisoners  and  his  efforts  to  prevent  blood- 
shed were  fairly  established.     Then,  to  contrast 

95 


DECISIVE   BATTLES  OF  THE  LAW 

his  conduct  with  that  of  his  assailants,  testimony 
was  introduced  showing  the  treatment  which 
his  truce-bearers  had  received,  and  a  more  re- 
volting recital  of  mob  violence  has  never  been 
recorded  in  a  court.  With  scarcely  a  tinge  of 
shame  or  compunction  of  any  sort,  Henry  Hun- 
ter, the  prosecutor's  own  son,  took  the  stand 
and  confessed  that,  enraged  by  the  death  of 
his  uncle,  Fontaine  Beckham,  he  and  another 
young  man  had  sought  out  Thompson,  one  of 
Brown's  men  who  had  been  captured  bearing  a 
flag  of  truce,  and  had  attempted  to  shoot  him 
as  he  sat  bound  hand  and  foot  in  a  room  of  the 
Harper's  Ferry  hotel,  and  that  being  foiled  in 
this  effort  by  a  young  woman  who  threw  her- 
self upon  the  prisoner  and  shielded  him  with 
her  own  body,  they  had  at  last  dragged  him  out 
of  the  hotel  to  the  railroad  bridge,  and  there 
despatched  him  with  their  revolvers,  throwing 
his  body  into  the  river. 

At  no  other  time,  perhaps,  in  the  history  of 
the  countr}^  would  it  have  been  possible  for  a 
man  to  repeat  a  story  of  such  degraded  ferocity 
in  the  presence  of  his  father  without  a  blush, 
and  under  no  other  conditions  could  a  father 
have  listened  to  such  a  confession  without  men- 
tal  anguish    and   horror.     Yet   such   was    the 

96 


THE  COMMONWEALTH  vs.   BROWN 

state  of  public  feeling  regarding  the  crimes  with 
which  Brown  was  charged  that  Andrew  Hunter, 
a  man  of  reputation  and  standing  in  the  com- 
munity, not  only  heard  this  brutal  avowal  with 
calmness,  but  encouraged  the  witness  as  he 
made  it  and  continued  his  prosecution  of  the 
prisoner  at  the  bar  with  unabated  vigor.  In- 
deed, the  only  man  in  the  court-room  who  was 
visibly  moved  by  this  shocking  recital  was  the 
defendant,  who  shed  tears  as  he  listened  to  the 
hideous  details  of  his  follower's  death. 

Despite  this  and  similar  testimony,  it  was  not 
long  before  the  witnesses  had  told  all  they  had 
to  tell  in  Brown's  favor,  and  as  some  of  those 
called  did  not  answer  to  their  names,  it  was  ap- 
parent that  the  proceedings  must  speedily  be 
brought  to  a  conclusion.  But  the  wounded  man 
lying  upon  the  court-house  floor  was  not  con- 
tent to  have  the  curtain  fall.  He  instinctively 
realized  that  every  hour  he  could  hold  the  stage 
was  vital  to  his  cause,  and  although  he  knew 
that  he  had  begun  to  arrest  and  focus  the  at- 
tention of  the  North  he  was  not  yet  satisfied 
with  the  result.  He  wanted  more  time  to  drive 
his  message  home,  and  he  determined  to  obtain 
it  at  any  and  every  cost. 

Witness  after  witness  had  been  called  with- 

97 


DECISIVE   BATTLES  OF  THE  LAW 

out  response,  and  the  lawyers  for  the  defence 
were  keeping  up  the  fight,  never  dreaming 
that  their  client  was  dissatisfied  with  their 
efforts,  when  the  inert  man  behind  them  slowly 
opened  his  eyes  and  rested  them  for  an  instant 
on  the  earnest,  boyish  face  of  young  Hoyt,  who 
was  bending  over  and  gently  fanning  him. 
Possibly  it  was  the  sympathy  of  that  young  en- 
thusiast's face  which  inspired  the  old  man  to 
immediate  action,  for,  to  the  intense  astonish- 
ment of  the  spectators,  he  suddenly  struggled 
to  his  feet  and  burst  into  a  torrent  of  denuncia- 
tion and  appeal. 

He  had  been  promised  a  fair  trial,  but  the 
promise  had  been  broken,  he  vociferated.  The 
trial  was  a  farce!  He  had  directed  witnesses  to 
be  subpoenaed  and  they  were  not  in  court.  He 
had  no  counsel  upon  whom  he  could  rely,  and 
if  he  was  to  have  anything  deserving  the  name 
or  resembling  the  shadow  of  a  fair  trial  it  was 
essential  that  the  case  be  adjourned  until  he 
should  procure  counsel  who  would  enforce  the 
attendance  of  his  witnesses.  One  day  should 
be  allowed  him  as  a  matter  of  decency.  If  not, 
let  the  Commonwealth  do  its  worst! 

The  moment  he  had  uttered  this  fierce  pro- 
nouncement,   the   prisoner   regained   his   usual 

98 


THE  COMMONWEALTH  vs.   BROWN 

calmness,  and,  quietly  resuming  his  former 
attitude,  settled  himself  comfortably  upon  his 
couch  without  a  word  to  his  astonished  counsel. 

The  moment  order  had  been  restored  in  the 
court-room,  Messrs.  Botts  and  Green  sprang  to 
their  feet  indignantly  repudiating  the  reflections 
which  had  been  cast  upon  their  professional 
conduct.  They  had  represented  the  prisoner  to 
the  best  of  their  ability,  they  declared,  faith- 
fully followed  his  instructions,  and  performed 
every  duty  which  law  or  honor  entailed  upon 
them ;  but  their  motives  having  been  impunged, 
and  a  want  of  confidence  in  them  expressed  in 
open  court,  they  had  no  alternative  but  to 
resign  and  leave  the  case  in  charge  of  the  gen- 
tleman from  Massachusetts. 

Utterly  unprepared  for  this  catastrophe, 
young  Hoyt  rose,  his  face  flushing  with  excite- 
ment and  embarrassment.  He  had  only  just 
completed  his  course  as  a  law  student,  and  even 
if  he  had  had  experience  in  the  Massachusetts 
court-rooms,  he  was  wholly  ignorant  of  Virginian 
law  and  practice.  The  situation  was  at  once 
painful  and  dangerous.  Knowing  the  true  ex- 
planation of  his  presence  at  the  trial,  he  realized 
the  peril  of  failing  to  support  the  role  he  had 
assumed,  but  he  had  neither  the  knowledge  nor 
8  99 


DECISIVE   BATTLES  OF  THE   LAW 

the  ability  to  accept  the  responsibility  thrown 
upon  him. 

No  member  of  the  bar  ever  faced  a  more 
desperate  situation  than  that  which  confronted 
this  inexperienced  stripling  as  he  met  the  smiles 
and  derision  of  the  hostile  spectators,  some  of 
whom  would  have  cheerfully  torn  him  to  pieces 
had  they  divined  his  secret.  But  mere  boy  as 
he  was,  young  Hoyt  possessed  a  daring  and 
courage  which  was  destined  at  no  distant  day 
to  carry  him  from  the  ranks  to  the  command  of 
a  regiment  on  the  field  of  battle,  and  he  rose  to 
the  emergency  unafraid. 

With  earnest  simplicity  and  true  dignity  he 
pointed  out  the  embarrassing  situation  in  which 
he  found  himself,  confessed  his  complete  igno- 
rance of  Virginian  law,  advised  the  court  that 
other  counsel  were  momentarily  expected,  and 
urged  an  adjournment  until  their  arrival.  Had 
the  judge  listened  to  Harding's  vehement  ob- 
jections the  defence  must  have  come  to  an 
abrupt  conclusion  then  and  there;  but  the  re- 
tiring lawyers,  inspired  by  Hoyt's  bold  front  in 
the  face  of  such  odds,  generously  seconded  his 
efforts,  offering  to  devote  every  spare  moment 
to  preparing  him  for  his  duties  if  the  court  would 
grant  a  postponement,  and  Judge  Parker  finally 

lOO 


THE  COMMONWEALTH  vs.   BROWN 

adjourned  the  trial  until  the  following  morn- 
ing. 

Before  the  sessions  were  resumed,  however, 
the  defence  received  strong  reinforcements. 
Through  the  indirect  intervention  of  Montgom- 
ery Blair,  Mr.  Samuel  Chilton,  of  Washington, 
had  been  retained  to  represent  Brown's  interests, 
and  the  services  of  Mr.  Hiram  Griswold/  of 
Cleveland,  Ohio,  had  also  been  secured  b}'-  the 
prisoner's  friends  in  that  State,  and  both  of 
these  gentlemen  appeared  in  court  when  the 
case  was  again  called  for  trial. 

Samuel  Chilton  was  a  lawyer  of  unquestionable 
ability,  well  and  favorably  known  to  the  Vir- 
ginian bar,  and  related  to  Justice  Parker ;  but  he 
had  undertaken  the  case  with  great  reluctance 
and  his  appearance  at  the  eleventh  hour  placed 
him  at  a  disadvantage.  Mr.  Griswold  was  also 
an  advocate  of  considerable  reputation  in  his 
own  State,  but  he  was  even  more  handicapped 
by  total  lack  of  preparation  than  his  new  as- 
sociate, for  he  knew  practically  nothing  of  Vir- 
ginian law,  and  most  of  the  points  which  these 
gentlemen  presented  were  suggested  to  them  by 
Messrs.  Botts  and  Green. 

^  Newspaper  and  other  reports  of  the  trial  note  the  appear- 
ance of  Henry  Griswold,  but  this  is  an  error. 

lOI 


DECISIVE  BATTLES  OF  THE  LAW 

The  presence  of  his  new  counsel,  however,  ac- 
compHshed  precisely  what  Brown  most  desired, 
for  it  enabled  him  to  keep  the  field  for  another 
twenty-four  hours,  and  it  was  not  until  Novem- 
ber ist,  the  sixth  day  of  the  trial,  that  the  clos- 
ing speeches  were  in  order. 

Both  Griswold  and  Chilton  addressed  the 
jurors  with  force  and  discretion,  making  no 
futile  appeal  to  their  sympathies,  but  attempting 
to  create  a  doubt  in  their  minds  as  to  the  defend- 
ant's guilt  under  the  indictment.  Andrew  Hun- 
ter then  svimmed  up  for  the  Commonwealth,  dis- 
playing admirable  reserve  and  great  ability, 
and  by  the  early  afternoon  Judge  Parker  had 
charged  the  jurors  with  unexceptional  fairness 
and  directed  them  to  retire  for  their  verdict. 

During  all  these  proceedings  the  prisoner  nev- 
er stirred  from  his  couch,  but  lay  with  closed 
eyes,  apparently  unconscious  of  the  legal  bat- 
tling for  his  life ;  and  when  the  jury  filed  into  the 
room  and  recorded  their  verdict  of  guilty  on 
each  of  the  three  indictments,  he  merely  turned 
over  on  his  side  and  settled  himself  more  com- 
fortably upon  his  pillow. 

No  sane  man  in  Charles  Town  had  doubted  the 
result  from  the  first,  and  there  was  no  cause  for 
rejoicing,  yet  it  is  to  the  credit  of  Virginia  that 

I02 


THE  COMMONWEALTH  vs.   BROWN 

in  the  tension  of  that  moment,  when  the  verdict 
was  announced,  no  demonstration  of  any  kind 
voiced  the  popular  approval. 

Silently  and  without  disorder  the  crowd  passed 
from  the  court,  massing  for  a  moment  before  the 
jail  as  the  condemned  man  was  borne  to  his 
cell  surrounded  by  the  militia,  and  then  quietly 
dispersing  to  spread  the  news  that  Virginia  had 
written  the  first  word  of  her  answer  to  all 
Abolition  malefactors,  and  had  written  it  in 
blood. 

On  the  following  evening  the  prisoner  was 
conducted  to  the  court  for  sentence,  and  again 
every  square  inch  inside  the  building  was  occu- 
pied by  an  expectant  throng,  half  hidden  in  the 
big,  black  shadows  of  the  gas-ht  room. 

Already  at  the  counsels'  table  papers  and 
books  had  accimiulated  in  the  trial  of  Brown's 
followers,  and  the  machinery  of  the  law  was 
once  more  in  motion.  The  interest  of  the 
crowd,  immediately  centred  upon  the  con- 
victed prisoner,  for  it  was  universally  expected 
that  he  would  attempt  an  inflammatory  ha- 
rangue in  response  to  the  formal  questions  pre- 
ceding sentence.  No  such  thought,  however, 
had  apparently  entered  Brown's  head,  and  it  is 
extremely  doubtful  if  he  was  aware  of  the  pur- 

103 


DECISIVE   BATTLES   OF  THE   LAW 

pose  for  which  he  had  been  conducted  to  the 
court-room.  Indeed,  when  the  clerk  demanded 
if  he  could  assign  any  reason  why  sentence 
should  not  be  pronounced  upon  him,  he  stared 
at  the  bench  in  evident  astonishment,  and  it  was 
some  moments  before  he  answered. 

''  I  have,  may  it  please  the  court,  a  few  words 
to  say,"  he  began.  "  In  the  first  place,  I  deny 
everything  but  what  I  have  all  along  admitted 
— the  design  on  my  part  to  free  the  slaves.  .  .  . 
That  was  all  I  intended.  .  .  .  Now,  if  it  is  neces- 
sary that  I  forfeit  my  life  for  the  furtherance  of 
the  ends  of  justice,  and  mingle  my  blood  with 
the  blood  of  millions  in  this  slave  country  whose 
rights  are  disregarded  by  wicked,  cruel,  and 
unjust  enactments,  I  submit.  Let  it  be  done. 
Let  me  say  one  word  further.  I  feel  entirely 
satisfied  with  the  treatment  I  have  received  on 
my  trial.  Considering  all  the  circumstances  it 
has  been  more  generous  than  I  expected.  But 
I  feel  no  consciousness  of  guilt.  I  have  stated 
from  the  first  what  was  my  intention  and  what 
was  not.  .  .  .  Now  I  have  done." 

In  the  hush  that  followed  this  quiet,  simple 
utterance,  John  Brown  was  sentenced  to  be 
hanged  on  December  2d,  and  a  few  moments 
later  he  was  smuggled  out  of  the  building,  not 

104 


THE   COMMONWEALTH  vs,   BROWN 

a  man  in  the  audience  being  permitted  to  stir 
until  he  had  been  safely  returned  to  his  cell  with- 
out the  assistance  of  the  militia,  whose  services 
Judge  Parker  had  haughtily   declined,  holding 
that  soldiers  had  no  business  in  a  court  of  law. 
It  was  not  long,   however,   before  the  civil 
aspects  of  that  hall  of  justice  utterly  disappear- 
ed, for  within  a  month  the  military  authorities 
took  complete  possession  of  every  public  build- 
ing for  the  housing  of  the  thousands  of  troops 
assembled  in   Charles  Town.     Indeed,   on  the 
evening  of  December   ist,   two  companies  of 
militia  were  quartered  in  the  court-room  itself, 
guns    stacked    outside    the    counsels'    railing, 
knapsacks  and  canteens  piled  upon  the  bench; 
belts,  cartridge-boxes,  and  accoutrements  of  all 
kinds  lying  on  the  coimsels'  table;   and  among 
the  men  who  slept  upon  their  blankets  on  the 
floor  and  benches  of  the  dismantled  court-room 
was  John  Wilkes  Booth,  a  private  in  Company 
F  of  the  Jefferson  Guards. 

All  this  display  of  force  was  designed  to  strike 
terror  to  the  hearts  of  the  Abolitionists,  and 
prevent  the  rescue  of  a  man  whose  only  fear  was 
that  he  might  not  be  allowed  to  die  upon  the 
gallows,  whose  worst  enemies  were  the  friends 
who  plotted  and  petitioned  in  his  behalf,  whose 

105 


DECISIVE   BATTLES  OF  THE   LAW 

only  danger  was  that  some  inspired  statesman 
in  Virginia  would  divine  the  danger  of  his 
martyrdom  and  devise  the  means  of  reopening 
the  question  of  his  sanity;  and  whose  supreme 
moment  was  when  he  stood  upon  the  scaffold, 
while  the  armed  hosts  of  Virginia  marched  and 
countermarched,  deployed,  skirmished,  and 
manoeuvred  in  battle  array  to  insure  the  ful- 
filment of  his  heart's  desire.  No  wonder  he 
stood  steady  as  a  soldier  on  parade,  while  the 
muskets  rattled  and  the  ground  shook  beneath 
the  tramping  feet. 


IV 


DRED     SCOTT     VS.     SANFORD! 
THE    UNCOVERING    OF    AN    HISTORIC    TRIAL 

(  No  legal  controversy  in  the  United  States  has  equalled 
the  Dred  Scott  case  in  point  of  historic  interest,  and  yet, 
strangely  enough,  its  origin  has  remained  more  or  less  a 
mystery. ^\  As  early  as  i8§8  the  charge  was  made  that  it 
was  a  political  conspiracy  to  obtain  a  decision  favorable 
to  the  slave  power  by  means  of  a  trumped-up  case  prose- 
cuted in  bad  faith  and  insincerely  defended.  This  sinister 
accusation  was  promptly  and  authoritatively  refuted  at  the 
time,  but  the  ugly  rumors  and  suspicions  upon  which  it 
was  based  have  persisted,  in  one  form  or  another,  to  this 
day. 

The  more  popular  view  of  the  litigation,  however,  pre- 
sents it  as  the  heroic  struggle  of  an  abused  slave  against  a 
cruel  master,  and  the  historians  have  either  adopted  this 
romantic  treatment  or  made  no  attempt  to  solve  the  secret 
of  its  origin. 

Meanwhile,  though  half  a  century  has  elapsed,  the  ques- 
tions as  to  how  the  case  started,  who  the  plaintiff  and 
defendant  really  were,  what  forces  were  behind  them,  and 
what  their  motives  were,  have  remained  uninvestigated, 
and  the  complete  story  of  this  famous  lawsuit,  largely 

107 


DECISIVE   BATTLES  OF  THE   LAW 

based  upon  documentary  evidence,  is   here  jor   the  first 
time  recorded. 


IN  1787  Mr.  Nathan  Dane,  a  Representative 
from  Massachusetts,  introduced  an  Ordinance 
in  Congress  excluding  slavery  from  the  territory 
northwest  of  the  Ohio,  including  the  present 
States  of  Ohio,  Indiana,  Illinois,  Michigan,  and 
Wisconsin,  and  the  measure  was  almost  unani- 
mously carried,  the  only  vote  against  it  being  cast 
by  a  member  from  New  York.  This  peaceful 
legislation,  however,  was  fated  to  be  the  first 
and  last  evidence  of  harmony  on  the  question  of 
slavery.  Indeed,  the  fierce  struggle  which  men- 
aced the  existence  of  the  nation  for  wellnigh 
eighty  years  thereafter  may  fairly  be  ascribed 
to  its  enactment,  for  the  law  had  no  sooner  been 
placed  upon  the  statute-books  than  its  suspen- 
sion was  vigorously,  but  vainly,  demanded  by 
powerful  factions  under  the  leadership  of  the 
young  Territorial  Governor,  William  Henry  Har- 
rison, and  it  was  mainly  under  cover  of  this 
constant  vskirmishing  that  the  lines  of  battle 
were  formed  in  1820  to  decide  another  issue, 
much  more  vital  to  the  South,  namely,  whether 
Missouri  should  be  admitted  to  the  Union  as  a 
free  or  a  slave  State. 

108 


DRED  SCOTT  vs.  SANFORD 

By  this  time,  however,  the  opposing  hosts 
were  so  evenly  matched  that  neither  could  drive 
the  other  from  the  field,  and  a  deadlock  result- 
ing, the  advocates  of  slavery  resolved  to  en- 
compass their  end  by  diplomacy,  for,  in  their 
opinion,  political  control  of  Missouri  had  become 
essential  to  their  safety,  and  their  fears  were 
not  unfounded.  With  five  or  more  free  States 
guaranteed  by  the  Ordinance,  and  with  abound- 
ing evidence  of  increasing  population  and  pros- 
perity in  the  North,  it  was  obvious  that  the 
days  of  the  South's  supremacy  in  the  national 
councils  were  numbered,  unless  the  area  of  sla- 
very could  be  enlarged,  and  of  this  imperious 
necessity  came  the  Missouri  Compromise,  yield- 
ing the  new  State  to  slavery,  but  dedicating  all 
the  region  north  of  it  to  freedom. 

Neither  side  fully  understood  the  terms  of 
peace.  To  the  slave-owners  they  meant  an  in- 
creased majority  in  the  House  and  Senate, 
cheaply  purchased  by  the  concession  of  territory 
apparently  unsuited  to  slavery.  To  the  Free- 
staters  they  vindicated  a  principle,  and  pre- 
sented at  least  a  moral  barrier  to  the  further 
aggressions  of  their  opponents.  It  was  not 
long,  however,  before  explorers  and  travellers 
revealed  the  true  nature  of  the  territory  conse- 

109 


DECISIVE  BATTLES  OF  THE  LAW 

crated  to  freedom,  and  realizing  that  new  free 
States  would  soon  be  formed  in  the  fertile 
region  they  had  unwittingly  yielded,  the  rep- 
resentatives of  the  slave  power  resolved  to 
offset  this  danger  by  extending  their  dominion 
to  the  south.  Of  this  came  the  Creek  and 
Seminole  wars,  the  admission  of  Florida,  the 
American  colonization  of  Texas  and  its  declara- 
tion of  independence,  the  resulting  war  with 
Mexico,  the  cession  and  forced  sale  of  a  vast 
domain  from  the  vanquished  enemy,  and  the 
annexation  of  Texas,  with  the  significant  pro- 
vision that  four  States  might  be  carved  out  of 
its  generous  area. 

It  was  impossible  for  the  opponents  of  slavery 
to  control  this  course  of  events.  Military  vic- 
tories and  patriotic  pride  in  the  extension  of 
the  national  boundaries  at  the  expense  of  a 
foreign  foe  obscured  the  real  issue.  Certainly 
the  eagerness  with  which  the  Free-staters  ac- 
cepted the  sop,  that  slavery  should  be  excluded 
from  all  the  annexed  region  lying  north  of 
the  Missouri  Compromise  line,  is  proof  of  their 
helplessness,  for  every  acre  of  it  lay  south  of 
that  parallel,  and  the  only  value  of  this  farcical 
concession  was  its  tacit  confirmation  of  the 
Missouri  Compromise. 

no 


DRED  SCOTT  vs.   SANFORD 

The  full  disadvantage  of  that  political  bar- 
gain, however,  did  not  dawn  upon  the  advocates 
of  slavery  until  they  discovered  that  even  the 
vast  territory  wrested  from  Mexico  would  not 
long  suffice  to  maintain  them  in  power.  Every 
State  which  was  admitted  from  the  Northwest 
meant  two  votes  against  slavery  in  the  Senate 
and  decreasing  power  for  its  advocates  in  the 
House,  and  the  admission  of  several  such  States 
was  imminent.  Unless,  therefore,  the  Missouri 
Compromise  could  be  set  aside,  it  was  only  a 
question  of  time  when  the  South  would  be 
ousted  from  power,  for  there  was  no  further 
chance  of  extending  the  national  bordersj  and 
realizing  that  they  were  again  in  daHger  of  be- 
ing surrounded,  the  proslavery  men  fought 
with  skill  and  desperation  to  pierce  their  op- 
ponents' enfolding  line.  From  such  leaders  as 
Reverdy  Johnson  and  Alexander  H.  Stephens 
came  assertions  that  if  the  North  had  deter- 
mined to  debar  slavery  from  all  the  new  terri- 
tories, the  South  could  no  longer  remain  in  the 
Union,  although  they  admitted  the  legal  right 
of  the  majority  in  Congress  to  enact  the  neces- 
sary legislation  and  despaired  of  any  appeal  to 
the  cotirts.  Both  these  gentlemen  were  to 
change  their  opinions  on  the  legal  aspect  of 

III 


DECISIVE   BATTLES  OF  THE  LAW 

the  situation  before  many  years  had  passed; 
but  meanwhile  a  convention  of  States  discuss- 
ing secession  at  Nashville,  Tennessee,  and  other 
significant  events,  lent  so  menacing  an  emphasis 
to  their  declaration,  that  even  such  a  stanch 
opponent  as  Webster  weakened  in  his  resistance 
to  the  aggressions  of  slavery;  and  the  com- 
promises of  1850,  involving  the  admission  of 
California  as  a  free  State,  the  Territorial  organi- 
zation of  Utah  and  New  Mexico  without  the 
Wilmot  Proviso  interdicting  slavery,  the  aboli- 
tion of  the  slave-trade  in  the  District  of  Colum- 
bia, and  the  passage  of  the  most  drastic  fugitive- 
slave  law  ever  placed  on  the  statute-books  were 
effected. 

Encouraged  by  this  success  and  the  election 
of  their  Presidential  candidate,  the  slavery 
advocates  pressed  their  advantage,  and,  mass- 
ing their  forces  on  the  25th  of  May,  1854,  they 
penetrated  the  ranks  of  their  disorganized  op- 
ponents, and  compelled  the  surrender  of  the 
Missouri  Compromise.  In  the  first  flush  of  this 
stupendous  triumph  the  cause  of  the  victors 
seemed  assured,  for  the  repeal  of  the  famous 
legislation  opened  the  Northwest  to  slavery 
and  practically  nationalized  their  favorite  in- 
stitution.    It   was   only   for   a   moment,   how- 

112 


DRED  SCOTT  vs.   SANFORD 

ever,  that  they  were  permitted  to  indulge  this 
dream  of  security,  for  the  North  greeted  the 
repeal  with  a  roar  of  indignation,  and  at  the 
close  of  the  fall  elections  in  1854  a  new  danger 
confronted  the  dominant  party  and  threatened 
to  turn  its  victory  into  defeat.  WTien  the 
repeal  was  effected  the  Democrats  had  a  ma- 
jority of  eighty-four  in  the  House  of  Repre- 
sentatives, but  the  next  election  not  only  wiped 
out  this  comfortable  margin,  but  left  them  in 
a  minority  of  seventy-five.  Concerted  action 
on  the  part  of  their  opponents  meant  nothing 
less,  therefore,  than  the  restoration  of  the 
Missouri  Compromise,  and  as  long  as  this  was 
even  a  possibility  there  was,  to  their  thinking, 
no  safety  for  the  South.  The  situation  was 
certainly  perilous,  for  though  their  enemies  were 
divided,  the  North  was  aroused  as  it  had  never 
been  before,  public  opinion  was  rapidly  crys- 
tallizing, and  the  shrewd  slavery  campaigners 
realized  that  the  advent  of  a  leader  would 
speedily  organize  the  opposition  and  discipline 
it  into  an  effective  army.  To  forestall  this  con- 
tingency desperate  efforts  were  made  to  acquire 
Cuba  by  hook  or  by  crook  and  create  more  slave 
States  out  of  that  island,  but  all  hope  of  secur- 
ing such  reinforcements  was  soon  frustrated. 

113 


DECISIVE   BATTLES   OF  THE   LAW 

There  was  yet  time,  however,  to  steal  a 
march  on  the  antislavery  forces  and  deHver  a 
blow  that  would  neutralize  their  efforts  should 
they  subsequently  unite,  and  as  the  wily  chiefs 
of  the  Democracy  were  casting  about  for  a 
feasible  plan  of  action,  a  strange  chance  afford- 
ed the  very  opportunity  they  were  seeking. 

Years  before  this  crisis  was  reached,  far 
from  the  scene  of  conflict  and  scarcely  within 
sound  of  its  angry  clamors,  a  little  domestic 
drama  had  been  unfolding  which  was  destined 
to  prove  historic.  In  1834  there  arrived  at 
Rock  Island,  a  military  post  in  Illinois,  an 
army  surgeon  by  the  name  of  John  Emerson, 
who  brought  with  him  from  Missouri  a  negro 
about  twenty-four  years  of  age,  called  Dred 
Scott,  bom  in  Virginia,  and  formerly  the  prop- 
erty of  Peter  Blow,  a  distinguished  citizen  of 
that  State.  Dr.  Emerson  was  subsequently 
transferred  to  Fort  Snelling,  in  that  part  of 
Wisconsin  Territory  which  later  became  Minne- 
sota, and  while  there  Dred  Scott,  with  the  con- 
sent of  his  master,  married  a  negress  known  as 
Harriet,  whom  the  surgeon  had  purchased  from 
a  certain  Major  Taliaferro.  Of  this  marriage 
there  were  two  children,  Eliza,  bom  on  a  Mis- 

114 


DRED   SCOTT  vs,   SANFORD 

sissippi  steamboat  north  of  Missouri,  and  Lizzie, 
bom  at  Jefferson  Barracks,  a  United  States 
army  post  in  Missouri,  and  when  Dr.  Emerson 
returned  to  his  home  in  St.  Louis  in  1838  he 
brought  Scott  and  his  family  with  him.  Six 
years  later  the  doctor  died  in  Davenport, 
Iowa,  leaving  a  will  which  was  probated  in 
that  State,  appointing  his  brother-in-law,  John 
F.  A.  Sanford,*  one  of  his  executors,  and 
leaving  his  property  to  his  wife  in  trust  for 
his  daughter. 

Dred  Scott  was  about  thirty-four  years  of 
age  when  Dr.  Emerson  died,  and  there  is  evi- 
dence that  for  a  time  he  was  kept  at  army 
posts,  but  in  less  than  two  years  he  and  his 
family  were  returned  to  St.  Louis,  and  Mrs. 
Emerson  found  herself  confronted  by  an  em- 
barrassing situation.  She  did  not  want  to  own 
the  slaves,  and  yet  she  could  not  sell  them, 
for  people  of  good  standing  did  not  market 
their  negroes  except  as  a  punishment  for  grave 
offences,  and  her  right  to  emancipate  them  was 
very  questionable  under  the  terms  of  her  hus- 

^  This  name  is  incorrectly  spelled  "Sandford"  in  the  U.  S. 
Supreme  Court  Reports  and  other  official  documents.  The 
writer  has  examined  the  original  records  of  the  Probate  Courts  in 
Davenport  and  St.  Louis,  but  none  of  the  papers  makes  direct 
reference  to  any  slaves  owned  by  Dr.  Emerson. 
9  115 


DECISIVE   BATTLES  OF  THE  LAW 

band's  will — all  the  property  of  the  estate  hav- 
ing been  expressly  left  in  trust.  Possibly  some 
solution  of  the  difficulty  might  have  been  found, 
but  there  is  no  evidence  that  Mrs.  Emerson 
attempted  any,  and  within  a  short  time  she 
removed  from  Missouri  to  Massachusetts, 
abandoning  Dred  Scott  to  his  own  devices. 
Had  he  been  a  competent  workman  Scott 
might  have  employed  his  practical  freedom 
to  good  advantage,  but  he  was  apparently 
a  shiftless,  incapable  specimen  of  his  race, 
and  it  was  not  long  before  he  and  his  family 
became  charges  on  the  bounty  of  Taylor 
Blow,  a  son  of  his  old-time  master  and  the 
playmate  of  his  childhood  in  Virginia.  It 
may  well  be  imagined  that  this  situation  was 
not  pleasing  to  Mr.  Blow,  for  the  Scotts  were 
not  free,  and  supporting  them  was  virtual- 
ly taking  care  of  somebody  else's  property 
— a  thankless  and  ungrateful  task.  If  they 
could  be  emancipated  there  might  be  some 
satisfaction  in  protecting  them,  but  encourag- 
ing slaves  to  obtain  their  freedom  was  a  very 
delicate  matter,  and  it  is  not  surprising  that 
there  is  no  direct  proof  that  Blow  brought  Scott 
to  the  attention  of  Field  &  Hall,  a  well-known 
legal  firm  in  St.  Louis,  though  there  is  Httle 

ii6 


DRED  SCOTT  vs.   SANFORD 

doubt  that  he  did  so  with  the  idea  of  discover- 
ing some  legal  solution  of  the  difficulty.  Messrs. 
Field  &  Hall  were  only  too  willing  to  come  to 
the  rescue,  for  with  all  the  facts  before  them 
they  immediately  saw  an  unusual  opportunity 
to  test  the  law  on  slavery — and  another  oppor- 
tunity which  was  not  to  be  neglected.  Here 
was  a  slave  who  had  not  only  been  brought  by 
his  owner  into  Illinois,  doubly  protected  against 
slavery  by  the  Ordinance  of  1787  and  its  own 
constitution,  but  also  into  a  territory  where 
slavery  was  illegal  under  the  Missouri  Com- 
promise and  other  Congressional  legislation. 
Moreover,  his  marriage  had  been  contracted  on 
free  soil  and  at  least  one  of  his  children  bom 
beyond  the  jurisdiction  of  slavery.  A  better 
case  for  presenting  the  claim  that  the  removal 
of  slaves  into  free  territory  effected  their  eman- 
cipation could  not  well  be  imagined. 

There  is  little  likelihood,  however,  that  it 
was  this  nice  point  of  law  or  any  humanitarian 
impulses  that  actuated  the  attorneys.  Indeed, 
there  is  every  indication  that  their  motives  were 
anything  but  disinterested,  for  the  papers  show 
that  their  main  object  was  to  pave  the  way  for 
a  suit  against  the  Emerson  estate  for  the  twelve 
years'  wages  to  which  Scott  would  be  entitled 

117 


DECISIVE   BATTLES  OF  THE   LAW 

should  the  courts  declare  that  he  had  been 
illegally  held  as  a  slave  since  1834.  Had  it  not 
been  for  this  ulterior  design  it  is  highly  im- 
probable that  the  suit  would  ever  have  been 
defended. 

Scott  himself  probably  understood  little  or 
nothing  about  the  matter,  for  he  was  wholly 
illiterate,  and  there  is  no  evidence  that  he  took 
any  particular  interest  in  it.  During  the  fall 
of  1846,  however,  he  signed  his  cross  to  a  peti- 
tion^ beginning  a  suit  for  his  freedom  by  claim- 
ing damages  for  technical  false  imprisonment 
and  assault  and  battery  against  his  mistress, 
Irene  Emerson,  and  it  was  this  action,  undoubt- 
edly instigated  by  attorneys  with  mercenary 
motives,  that  led  the  way  to  a  cause  celebre, 
destined  to  make  history,  and  to  prove  one  of 
the  provocations  of  the  Civil  War. 

Despite  the  ideal  facts  supporting  their  con- 
tentions, Messrs.  Field  &  Hall  soon  met  with 

*  The  writer's  investigations  have  disclosed  the  fact  that  the 
original  papers  in  this  action  have  been  removed  from  the  court 
files.  Diligent  effort  is  now  being  made  to  recover  them,  but 
at  this  writing  they  have  not  been  secured.  The  clerk's  docket, 
however,  and  other  records  (including  a  second  suit  begun  in 
1847  against  Dr.  Emerson's  heirs  and  subsequently  abandoned), 
fairly  demonstrate  that  the  attorneys  and  the  proceedings  were 
as  above  stated.  An  action  was  also  begun  for  Scott's  wife, 
and  damages  to  a  considerable  amount  claimed  for  her  and 
for  the  children. 

118 


DRED  SCOTT  vs.   SANFORD 

a  reverse,  for  at  the  April  (1847)  term  of  the 
Circuit  Court  the  presiding  judge  instructed  the 
jury  to  bring  in  a  verdict  for  the  defendant,  but 
a  new  trial  was  subsequently  granted  by  an- 
other Circuit  Judge,  Alexander  Hamilton  by 
name,  and  in  the  second  trial  a  verdict  was 
recorded  in  favor  of  Scott.'  This  result  was 
not  attained,  however,  until  January,  1850, 
over  three  years  after  the  litigation  started,  and 
the  end  was  not  even  then  in  sight,  for  the 
Emerson  estate  immediately  appealed  to  the 
Supreme  Court  of  Missouri,  and  there  the  mat- 
ter  rested  for  over  two  years  more.  Scott's 
attorneys,  however,  could  afford  to  take  their 
time,  for  during  all  this  period  their  client  had 
been  in  the  hands  of  the  sheriff,  that  official 
having  been  ordered  by  the  court  to  hire  him 
out  during  the  pendency  of  the  action  and 
account  for  his  wages  to  the  successful  party 
on  its  determination,  so  his  earnings  were  safely 
secured  and  there  was  no  reason  for  haste. 
The  costs,  moreover,  were  guaranteed  to  the 
owner,  in  case  she  succeeded,  by  a  bond  which 
shows  that  Taylor  Blow  was  behind  the  case,  for 
the  surety  was  his  son-in-law,  Joseph  Charless. 

^  Unsuccessful  appeals  were  taken  by  the  defendant  from  this 
order.     See  ii  Mo.  Reps.,  413. 

119 


DECISIVE   BATTLES  OF  THE   LAW 

It  was  March,  1852,  six  years  after  the  action 
started  and  two  years  before  the  Missouri  Com- 
promise was  repealed,  that  the  Supreme  Court 
took  up  the  case  of  "  Scott  (a  man  of  color)  vs. 
Emerson,"  and  a  more  unpropitious  moment 
for  the  negro  and  his  interested  advisers  cannot 
be  imagined.  Sectional  disputes  over  the  sla- 
very question  were  raging  fiercely  throughout  the 
country,  but  nowhere  more  bitterly  than  in 
Missouri,  and  the  brief  submitted  by  Lyman 
Decatur  Norris,  of  the  firm  of  Garland  & 
Norris,  for  the  defence,  well  reflects  the  spirit 
of  the  times.  Slavery  agitation  he  denounced 
''  as  a  species  of  Black  Vomit  that  ever  has  and 
will,  we  hope,  continue  to  carry  unfledged  states- 
men and  higher-law  demagogues  to  the  grave  of 
political  oblivion  F'  and  these  gusty  periods, 
interspersed  with  poetical  quotations,  so  im- 
pressed the  official  reporter  that  he  paid  the 
writer  the  unusual  compliment  of  printing  his 
effusion  in  full.  Nevertheless,  the  document 
was  not  without  legal  authority,  and  its  review 
of  the  existing  precedents  demonstrated  that 
although  Lord  Mansfield's  celebrated  doctrine 
in  the  Somersett  case  had  been  generally  ac- 
cepted, to  the  effect  that  a  slave  who  once  set 
foot  on  free  soil  became  emancipated,  the  status 

1 20 


DRED   SCOTT  vs.   SANFORD 

of  such  a  freedman  on  his  return  to  a  slave 
country  was  still  an  open  question  in  the  United 
States. 

The  Supreme  Court  of  Missquri,  however,  was 
in  no  mood  to  discuss  nice  questions  of  law, 
and  by  a  vote  of  two  to  one  it  ruled  against  the 
plaintiff,  Judge  Scott  remanding  his  namesake 
to  slavery  in  an  opinion  more  notable  as  a 
political  tract  than  as' sT  judicial  utterance,  and 
Judge  Gamble  dissenting  in  a  similar  spirit, 
both  jurists  displaying  more  temper  than  eru- 
dition/ 

With  this  angry  clash  between  the  highest 
judges  in  the  State,  Scott's  case  in  the  local 
courts  ended,  and  under  ordinary  circumstances 
it  would  never  have  been  heard  of  again,  for  it 
had  no  national  significance  whatsoever,  and 
the  only  foundation  of  the  vague  stories  which 
have  ascribed  its  origin  to  the  deep-laid  schemes 
of  slavery  politicians  is  the  fact  that  it  was 
supported  and  kept  in  the  courts  for  eight  years 
by  Taylor  Blow,  a  pronounced  sympathizer  with 
the  South. 

But   at   this   juncture,  however,  politics   or 


»  See  15  Mo.  Reps.,  557-559,  which  records  plaintiff's  counsel  as 
D.  B.  Hill.  This  is  evidently  a  misprint  for  D.  N.  Hall,  junior 
partner  of  Field  &  Hall. 

121 


DECISIVE   BATTLES  OP  THE   LAW 

patriotism  intervened,  for  one  Chauvette  E. 
La  Beaume,*  a  lawyer  related  by  marriage  to 
Taylor  Blow,  approached  Roswell  M.  Field, ^ 
one  of  the  best-known "  law'yers  ii^  St.  Louis, 
in  regard  to  the  case,  advising  fiim  that  Mrs. 
Emerson  had  in  1850  married  Dr.  Calvin  C. 
Chaffee,  a  physician  of  Springfield,  Massachu- 
setts and  a  member  of  Congress  from  that 
State.     It   was   therefore   possible   to   describe 

•  her  as  a  resident  of  Massachusetts  and  allege 
that  Scott  was  a  citizen  of  Missouri,  thus  creat- 

J  ing  an  issue  between  citizens  of  different  States, 
which  would  carry  the  case  into  the  Federal 
courts,  and  the  new  attorney  recommended 
this  course.  To  have  his  wife  appear  as  a 
slave-owner,  opposing  a  negro's  claim  to  free- 
dom, would,  however,  have  been  extremely 
embarrassing  to  the  Massachusetts  doctor,  who 
was  personally  and  politically  opposed  to  sla- 
very, and  there  is  every  indication  that,  to  avoid 
this,  the  nominal  ownership  of  Scott  and  his 
family  was  transferred  to  Mrs.  Chaffee's  brother, 

*  Hitherto  unpublished  autograph  letter  from  Field  to  Mont- 
gomery Blair,  in  possession  of  the  writer  through  courtesy  of  the 
present  Mr.  Montgomery  Blair.  Le  Beaume  undoubtedly  acted 
for  Blow,  who  endeavored  to  conceal  his  interest  in  the  case  until 
it  reached  the  Federal  courts. 

2  No  relation  of  the  A.  P.  Field,  of  Field  &  Hall,  the  original 
attorneys. 

122 


DRED  SCOTT  vs.   SANFORD 

John  F.  A.  Sanford,  a  resident  of  New  York. 
This  move  left  the  legal  situation  unchanged, 
and  in  November,  1853,  six  months  before  the 
repeal  of  the  Missouri  Compromise,  Field  insti- 
tuted a  new  action  for  Scott  in  the  United  States 
Circuit  Court  for  the  District  of  Missouri.^ 

The  preliminary  moves  in  this  momentous 
litigation  were  quickly  and  quietly  taken,  and 
only  a  few  weeks  before  the  Missouri  Compro- 
mise was  set  aside,  a  jtiry,  under  the  instructions 
of  the  local  Federal  judge,  rendered  a  verdict 
declaring  Scott  and  his  family  the  lawful  prop- 
erty of  the  defendant,  and  Mr.  Field  immedi- 
ately appealed  to  the  Supreme  Court  at  Wash- 
ington.^ 

Up  to  this  point  there  is  no  evidence  that 
any  political  part}^  was  behind  the  suit,  but  not 
long  after  Mr.  Field  filed  his  appeal  the  anxious 
leaders  of  the  South,  alarmed  by  the  clamor  of 

^  This  action,  No.  692  Circuit  Court  of  the  United  States,  Dis- 
trict of  Missouri,  was  brought  November  2,  1853,  for  Scott,  his 
wife,  and  children,  $9000  damages  being  claimed  in  the  com- 
plaint. The  assault  and  imprisonment  charged  in  the  document 
were  nominal  rather  than  real,  and  the  story  that  Scott  was 
cruelly  beaten  by  his  master  has  no  foundation.  Taylor  Blow 
openly  became  Scott's  bondsman.  Araba  N.  Crane,  a  native  of 
Vermont,  then  a  young  lawyer  in  Mr.  Field's  office,  actively 
assisted  him  in  the  case. 

2  This  appeal  was  taken  May  15,  1854.  The  Missouri  Com- 
promise was  set  aside  May  25,  1854. 

123 


DECISIVE   BATTLES  OF  THE   LAW 

their  opponents  for  the  restoration  of  the  Mis-  < 
souri  Compromise,  awoke  to  its  political  possi-  !  C^Y" 
bilities.  Here  was  a  case  actually  on  the  docket 
of  the  highest  legal  tribunal,  in  which  the  Mis- 
souri Compromise  was  invoked  to  sustain  the 
freedom  of  a  negro  who  had  resided  in  the  terri- 
tory which  it  had  dedicated  to  freedom.  A 
better  chance  to  declare  the  Compromise  and 
all  similar  restrictions  against  slavery  unconsti- 
tutional could  not  possibly  have  been  provided. 
The  existence  of  such  a  case  was  not  only 
opportune  for  the  slavery  interests,  but  posi- 
tively providential,  and,  properly  handled,  it 
bid  fair  to  place  the  enemy  in  their  power,  for 
if  the  Court  could  be  induced  to  declare  the 
famous  Compromise  unconstitutional,  further 
agitation  for  restoring  it  would  he  utterly  futile. 
A  great  opportunity  lay  before  the  South,  and 
her  able  representatives  lost  no  time  in  grasp- 
ing it. 

Meanwhile,  Mr.  Field  was  perfecting  his  plans 
without  the  slightest  suspicion  that  he  was  play- 
ing into  his  opponents'  hands;  and  assuming,  as 
he  undoubtedly  did,  that  the  Supreme  Court 
was  free  of  political  taint,  there  was  nothing  to 
put  him  on  his  guard,  for  the  law  was  strongly 
in  his  favor.     Doubtless  he  had  considered  the 

124 


DRED  SCOTT  vs.   SANFORD 

effect  of  an  adverse  decision,  but  there  is  proof  ^ 
that  he  believed,  as  Taylor  Blow  probably  did, 
that  it  would  be  better  for  the  country  to  have 
the  vexed  question  of  slavery  restrictions  de- 
cided contrary  to  his  wishes  than  not  to  have  it 
settled  at  all,  and  the  legal  precedents  justified 
him  in  regarding  the  chances  as  in  his  favor. 
To  the  familiars  of  the  Capitol,  however,  who 
remembered  that  five  out  of  the  nine  judges 
were  from  slave  States,  and  who  knew  the  po- 
litical leanings  of  every  member  of  the  bench, 
the  die  seemed  already  cast  which  was  to  seal 
slavery  as  a  national  institution,  and  the  pros- 
pect must  have  rejoiced  their  hearts. 

At  this  crisis  the  case  practically  passed  out 
of  the  hands  of  Messrs.  Garland  &  Norris, 
who  had  hitherto  represented  Scott's  owners, 
and  volunteer  counsel  of  national  reputation 
assumed  complete  control.  In  Missouri,  United 
States  Senator  Henry  S.  Geyer,  the  unques- 
tioned leader  of  the  St.  Louis  bar,  whose  defeat 
of  Thomas  H.  Benton  had  demonstrated  his 
political  importance,  offered  his  services,  and 
with  him  was  associated  Reverdy  Johnson,  ex- 
Attomey-General  of  the  United  States,  a  jurist 

*  Autograph  letter  of  Field  to  Blair,  December  24,  1854,  here- 
after quoted. 

125 


DECISIVE   BATTLES   OF  THE  LAW 

known  from  one  end  of  the  country  to  the  other. 
It  was  certainly  strange  that  Johnson,  who  had 
previously  declared  his  belief  that  it  was  hope- 
less to  appeal  to  the  courts  against  slavery 
restrictions,  should  have  thrown  himself  into 
the  breach;  but  the  times  had  changed  since 
the  great  advocate  had  despaired  of  judicial 
relief,  and  both  he  and  Alexander  H.  Stephens, 
who  had  shared  his  earlier  views,  and  who  was 
to  prove  a  not  unimportant  factor  in  the 
result,  doubtless  understood  the  situation  thor- 
oughly. 

In  the  meantime,  Mr.  Field  had  been  searching 
for  legal  assistance,  and  on  the  24th  of  December, 
1854,  he  wrote  Montgomery  Blair,  at  Washing- 
ton, as  follows:  '*  A  year  ago  I  was  employed  to 
bring  a  suit  in  favor  of  one  Dred  Scott,  a  black 
man  held  in  slavery.  .  .  .  The  question  involved 
is  the  much- vexed  one  whether  the  removal  by 
the  master  of  his  slave  to  Illinois  or  Wisconsin 
works  an  absolute  emancipation.  ...  If  you  or 
any  other  gentleman  at  W.  should  feel  interest 
enough  in  the  case  to  give  it  such  attention  as 
to  bring  it  to  a  hearing  and  decision  by  the 
Court,  the  cause  of  humanity  may  perhaps  be 
subserved;  at  all  events,  a  much-disputed  ques- 
tion would  he  settled  by  the  highest  courts  of  the 

126 


DRED  SCOTT  vs.   SANFORD 

nation.  ...  It  is  so  late  on  the  docket  that  it 
will  hardly  be  reached  this  term."  ^ 

This  letter  not  only  sets  at  rest  the  oft-re- 
peated stories  that  the  litigation  was  instigated 
by  the  Blairs  or  their  adherents,  but  demon- 
strates the  motives  of  those  who  brought  it  to 
the  attention  of  the  Federal  Court. 

Mr.  Field's  intimation  that  there  would  be 
ample  time  for  the  distinguished  counsel  to 
jjrepare  himself  for  the  contest  proved  well- 
founded,  for  it  was  not  until  February  ii,  1856, 
more  than  a  year  after  his  letter  was  written, 
that  the  case  was  argued,  and  even  then  its 
importance  was  so  little  realized  that  the  news- 
papers devoted  scarcely  any  attention  to  it; 
and  as  time  passed  by  without  any  decision 
from  the  Court,  its-  existence  was  apparently 
forgotten. 

It  was  not  forgotten  by  the  politicians,  how- 
ever, and  the  surrounding  circumstances  clearly 
indicate  that  they  were  already  at  the  elbows 
of  the  judges,  whispering  in  their  ears.  Certain 
it  is  that  the  judicial  deliberations  were  sus- 

^  From  a  hitherto  unpublished  letter  courteously  loaned  to  the 
writer  by  Montgomery  Blair,  Esq.  The  italics  are  the  writer's. 
The  Statement  of  Facts  agreed  upon  between  the  attorneys 
as  reported  in  19  How.  (U.  S.)  is  inaccurate  in  many  particulars 
touching  Scott's  history. 

127 


DECISIVE   BATTLES  OF  THE  LAW 

piciously  prolonged,  and  that  any  decision — 
especially  one  nationalizing  slavery — would  have 
been  extremely  embarrassing  to  the  managers 
of  Mr.  Buchanan's  pending  campaign  for  the 
Presidency,  the  success  of  which  was  considered 
vital  to  Southern  interests.  Finally,  on  May 
12,  1856,  came  the  solemn  announcement  that 
certain  technicalities  raised  by  the  pleadings 
required  a  reargument  of  the  whole  case,  and 
another  hearing  was  set  for  the  December  term 
— when  the  Presidential  contest  would  be  safely 
out  of  the  way. 

A  few  days  before  the  reargument,  Mont- 
gomery Blair  called  to  his  assistance  George 
Ticknor  Curtis,^  of  Boston,  brother  of  Justice 
Benjamin  R.  Curtis,  and  when,  on  December 
15,  1856,  the  case  was  again  reached,  these  two 
able  lawyers  presented  it  with  masterly  effect 
for  the  plaintiff,  Reverdy  Johnson  and  Senator 
Geyer  again  responding  with  equal  force  for  the 
defence,  each  side  occupying  the  attention  of 
the  court  for  two  entire  days. 

It  would  have  been  well  for  the  bench  had 
the  judges  listened  to  no  other  arguments  than 

*  Mr.  Blair  previously  attempted  to  retain  other  distinguished 
counsel,  but  none  of  them  would  serve.  (Blair  to  Editor  Na- 
tional  Intelligencer,  December  24,  1856.) 

128 


DRED  SCOTT  vs.   SANFORD 

those  presented  to  them  in  open  court  by  the 
able  advocates,   and  for  a  time  it  seemed  as 
though  the  case  would  be  disposed  of  in  regular 
course.     Almost    immediately    after    the    final 
argument  it  was  taken  up  in  the  judges'  private 
conference,  and  a  majority  voted  to  affirm  the 
decision  of  the  court  below,  Judge  Nelson  being 
assigned  to  write  a  brief  opinion,  which  was  to 
avoid  all  reference  to  the  constitutionality  or 
unconstitutionality  of  such  restrictions  as  the 
Ordinance  of  1787  and  the  Missouri  Compromise, 
and  merely  commit  the  Court  to  an  affirmance 
of  the  decision  of  the  State  Court,  treating  the 
issues  as  local  questions  with  which  the  Federal 
tribunal  was  not  inclined  to  interfere. 

Before  Mr.  Justice  Nelson  could  prepare  this 
opinion,  however,  the  active  agents  of  the  slave 
power  intervened.  At  dinners,  receptions,  and 
social  functions  of  all  sorts  they  waylaid  the 
judges,  adroitly  importuning  them  to  change 
their  plan,  flattering  those  whose  vanity  gave 
the  necessary  opening,  appeaHng  to  the^  ambi- 
tion of  others,  and  generally  emphasizing  the 
opportunity  which  lay  before  the  Court  to  fulfil 
a  public  and  patriotic  duty  by  forever  quieting 
a  discussion  injurious  to  the  country's  welfare. 
Declare  all  such  restrictions  against  slavery  as 

129 


DECISIVE   BATTLES  OF  THE  LAW 

the  Missouri  Compromise  unconstitutional,  it 
was  urged,  and  the  North  will  acquiesce  and 
the  Union  be  preserved.  Avoid  the  issue, 
and  the  agitation  will  precipitate  a  national 
disaster.  All  of  the  judges  were  honest  and 
conscientious,  but  some  of  them  were  far  ad- 
vanced in  age,  the  political  excitement  was  in- 
tense, and  the  pressure  which  was  constantly 
brought  to  bear  upon  them  was  well  calculated 
to  disturb  their  judgment. 

The  most  active  and  persistent  of  the  emis- 
saries who  thus  approached  the  jurists  was 
undoubtedly  Alexander  H.  Stephens,  and  his 
labors  began  fully  six  months  before  a  decision 
was  announced.  On  December  15,  1856,  he 
wrote  to  a  friend  as  follows:  "I  have  been 
urging  all  the  influence  I  could  bring  to  bear 
upon  the  Supreme  Court  to  get  them  to  post- 
pone no  longer  the  case  in  the  Missouri  Restric- 
tion, but  to  decide  it,"  and  that  his  influence 
was  potent  is  demonstrated  by  a  later  letter  in 
which  he  wTote:  ''The  decision  (of  the  Dred 
Scott  case)  will  be  a  marked  epoch  in  our  his- 
tory. From  what  I  hear  sub  rosa  it  will  be 
according  to  my  own  opinion  on  every  point  as 
abstract  political  questions.  The  restriction  of 
1820   will   be   declared   unconstitutional.     The 

130 


DRED  SCOTT  vs.   SANFORD 

judges  are  writing  out  their  opinions  .  .  .  seri- 
atim. The  Chief -Justice  will  give  an  elaborate 
one." 

How  an  outsider  came  to  be  so  intimately 
acquainted  with  what  was  happening  in  the 
secret  conclaves  of  the  judges  has  never  been 
disclosed,  but  the  information  was  accurate  in 
every  particular,  and  bears  evidence  of  having 
been  obtained  at  first  hand,  for  shortly  after 
Justice  Nelson  had  been  authorized  to  prepare 
his  opinion  another  judicial  conference  had  been 
held,  at  which  it  was  decided  to  change  the  plan 
already  agreed  upon,  and  to  meet  the  expecta- 
tion of  the  public  by  passing  directly  upon  the 
political  issues  involved.  This,  of  course,  meant 
nothing  less  than  a  declaration  that  Territorial 
restrictions  against  slavery  were  unlawful,  and 
from  the  moment  this  step  was  decided  upon  all 
the  judges  were  busy  with  their  law-books  and 
their  pens.  Thus  the  time  slipped  by  without 
any  announcement  from  the  Court,  and  it  was 
not  until  the  4th  of  March,  1857,  that  an  inti- 
mation reached  the  public  of  the  Court's  inten- 
tions. That  intimation,  however,  came  from  a 
high  authority,  for  President  Buchanan  in  his 
inaugural  referred  to  the  issue  of  slavery  in  the 

Territories  as  a  ''judicial  question  which  legiti- 
10  131 


DECISIVE   BATTLES  OF  THE  LAW 

mately  belongs  to  the  Supreme  Court  of  the 
United  States,  before  whom  it  is  now  pending, 
and  will,  it  is  understood,  be  speedily  and 
finally  settled." 

It  is  not  remarkable  that  the  Chief  Magistrate 
of  the  nation  should  have  been  accurately  in- 
formed of  the  Court's  intentions,  with  Stephens 
and  other  insiders  at  his  elbow,  and  two  days 
after  his  inaugural  prophecy  the  decision  was 
officially  announced  declaring  all  slavery  restric- 
tions unconstitutional,  six  judges  voluminously 
supporting  the  Chief-Justice's  exhaustive  opin- 
ion, and  two  bitterly  attacking  the  views  of  the 
majority. 

For  a  time  the  public  did  not  realize  what 
had  happened,  but  the  Northern  press  quickly 
made  the  matter  plain,  and  a  storm  of  indigna- 
tion followed.  That  seven  judges,  five  of  whom 
were  from  slave  States,  and  all  of  whom  were 
affiliated  with  the  Democrats,  should  officiously 
decide  the  slavery  issue  for  the  whole  country 
by  forever  nationalizing  the  institution,  roused 
the  free  States  to  the  point  of  fury.  Nothing 
that  had  previously  happened — not  even  the 
repeal  of  the  Missouri  Compromise — so  clearly 
demonstrated  the  fixed  determination  of  the 
slave  power  to  coerce  the  North,  and  from  that 

132 


DRED  SCOTT  vs,   SANFORD 

time  forward  public  opinion  in  the  free  States 
rapidly  solidified.  Moreover,  the  unfortunate 
wording  of  Chief -Justice  Taney's  opinion  gave 
strong  grounds  for  charging  that  he  had 'an- 
nounced the  brutal  doctrine  that  a  negro  "has 
no  rights  which  a  white  man  was  bound  to 
respect,"  and  this  offensive  sentence  focussed 
the  popular  wrath  upon  him.  Thousands  of 
copies  of  his  opinion  were  printed  with  those  of 
the  dissenting  judges,  Curtis  and  McLean,  and 
scattered  broadcast  over  the  country.  Seward 
openly  denounced  the  Court,  unjustly  hinting  at 
connivance  with  the  Executive;  Lincoln  ex- 
posed its  doctrines  with  remorseless  logic ;  mass- 
meetings  and  newspapers  attacked  them  in  the 
North,  while  the  whole  South  rang  with  ap- 
plause ;  and  in  less  than  a  fortnight  Dred  Scott 
had  become  a  national  character,  and  his  suit 
for  assault  and  battery  a  cause  cetehre. 

Eighteen  months  later  it  was  still  a  leading 
issue  in  the  great  debate  between  Douglas  and 
Lincoln,  the  latter  using  it  with  terrible  effect 
against  his  adversary,  and  it  was  Douglas's 
refusal  to  abide  b3^-the  decision  in  its  entirety 
that  in  i860  cost  him  the  Democratic  nomina- 
tion, and  hopelessly  split  the  party. 

Meanwhile,  Dr.  Chaffee  had  quietly  *  arranged 
^Z2> 


DECISIVE   BATTLES  OF  THE  LAW 

for  the  transfer  of  Scott  and  his  family  to 
Taylor  Blow,  in  order  that  their  legal  owner- 
ship might  be  vested  in  a  resident  of  Missouri 
having  power  under  the  State  laws  to  grant 
manumission,  and  in  May,  1857,  the  four  slaves 
were  officially  freed. 

Neither  of  the  parties  in  this  great  legal  battle 
lived  to  see  the  war  that  followed  it.  John  F. 
A.  Sanford  died  almost  directly  after  the  deci- 
sion, and  Scott  fell  a  victim  to  consumption  on 
September  17,  1858,  in  St.  Louis,  his  death  being 
scarcely  noted  in  the  fierce  political  excitement 
then  raging.  But  though  he  died  in  poverty 
and  neglect,  and  the  location  of  his  grave  is 
uncertain,  the  famous  case  with  which  his  name 
is  linked  will  outlast  any  monument,  and  as  a 
pawn  in  the  great  contest  over  slavery  his  fame 
is  forever  assured. 


V 

THE   IMPEACHMENT   OF   ANDREW   JOHNSON.* 
A   HISTORIC    MOOT    CASE 

IT  AD  a  foreigner,  unacquainted  with  Ameri- 
^  ^  can  politics,  unwittingly  selected  the  morn- 
ing of  March  30,  1868,  for  a  tour  of  the  national 
Capitol,  he  might  well  have  imagined,  on  ap- 
proaching the  seat  of  government,  that  a  social 
function  of  some  description  was  impending  in 
the  Halls  of  Congress,  for  fashionably  dressed 
women  were  arriving  in  carriages  and  flocking 
up  the  broad  stairway,  and  had  the  visitor 
proceeded  undaunted  into  the  rotunda  he 
would  have  found  himself  surrounded  by  ladies 
in  gala  attire. 

Even  a  stranger,  left  to  his  own  conjectures, 
would  have  speedily  discerned,  however,  that 
whatever  else  the  affair  might  be,  it  was  de- 
cidedly exclusive,  for  although  many  fair  guests 
were  apparently  called,  and  all  were  obviously 
clad  in  wedding-garments,   comparatively  few 

135 


DECISIVE   BATTLES  OF  THE   LAW 

were  chosen,  and  the  credentials  of  those  few 
were  subjected  to  a  rigid  scrutiny  before  their 
possessors  were  allowed  to  pass  the  door-keepers 
of  the  Senate  galleries.  It  was  no  easy  task 
which  had  devolved  upon  those  officials  that 
glorious  spring  morning.  Matrons  and  maidens 
besieged  them,  on  every  side,  arguing,  explain- 
ing, expostulating,  and  beguiHng,  and  a  buzz  of 
gentle  excitement  and  indignation  filled  the  air. 
The  door-keepers  were  not,  however,  without 
previous  experience,  and  scores  of  fair  appli- 
cants were  turned  away  with  scant  ceremony, 
venting  their  grievances  in  such  open  fashion 
that  any  one  who  chose  to  listen  speedily  learned 
that  the  ticket  system  governing  admission  to 
Andrew  Johnson's  impeachment  trial  was  a 
gross  infringement  of  American  liberty,  a  scan- 
dalous abuse  of  political  patronage,  and  gen- 
erally an  outrage. 

It  was  repeatedly  asserted,  without  contra- 
diction, that  Congressmen  and  Senators  had 
disposed  of  their  privileges  to  the  highest 
bidders,  and  that  speculators  were  marketing 
the  coveted  cards  of  invitation  at  fabulous 
prices.  Details  of  this  nefarious  business  were 
lacking  and  something  might  fairly  have  been 
allowed  for  the  disappointment  of  the  angry 

136 


IMPEACHMENT  OF  ANDREW  JOHNSON 

gossips,  but  accusations  against  politicians  are 
credited  on  general  principles,  and  it  would  not 
have  been  prudent  for  any  ticket  hawker  to  have 
offered  his  wares  in  the  vicinity  of  the  Capitol 
at  the  opening  of  the  greatest  State  trial  in  the 
history  of  the  republic.  Fortunately,  however, 
no  such  miscreant  appeared,  and  the  identity  of 
the  money-making  statesmen  has  never  been 
revealed. 

By  eleven  o'clock  the  rotunda  and  the  lobbies 
of  both  Houses  were  crowded  with  citizens,  but 
very  few  of  the  masculine  gender  sought  admit- 
tance to  the  guarded  entrance.  Representatives 
of  the  Diplomatic  Corps  and  belated  journalists 
drifted  in  with  the  procession  of  the  feminine 
elect ;  but  with  those  privileged  exceptions  every 
available  post  of  observation  was  occupied  by 
the  fair  sex  long  before  noon,  and  the  gay  spring 
gowns  and  bonnets  gave  a  color  and  brilliance 
to  the  galleries  which  contrasted  strangely  with 
the  sombre  scene  upon  the  floor.  Indeed,  the 
visitors  presented  a  picture  rarely,  if  ever, 
equalled  in  the  history  of  the  Chamber.  All 
Washington  was  represented  behind  the  flutter- 
ing fans — not  only  political  Washington,  but 
diplomatic,  literary,  artistic,  and  generally  ex- 
clusive Washington.     It  was  not  every  day  that 

137 


DECISIVE  BATTLES  OF  THE  LAW 

wives  and  daughters  of  Senators,  to  say  nothing 
of  Congressmen,  had  an  opportunity  of  meeting 
the  social  leaders  of  the  other  sets  upon  common 
ground,  and  almost  every  visitor  was  a  subject 
of  comment  to  every  other  as  the  spectators 
rustled,  stirred,  hummed,  and  buzzed  regardless 
of  the  distinguished  statesmen  droning  through 
routine  business  upon  the  Senate  floor. 

Doubtless  most  of  the  fair  onlookers  knew 
more  of  the  personal  history  of  their  neighbors 
than  they  did  of  the  merits  of  the  great  con- 
troversy which  had  occasioned  the  gathering, 
and  their  attendance  was  not  to  afford  them 
much  enlightenment.  Probably  all  that  the 
majority  knew  or  cared  to  know  was  that  the 
President  of  the  United  States  had  been  im- 
peached by  the  House  and  was  about  to  be 
tried  by  the  Senate  for  high  crimes  and  misde- 
meanors; but  the  particulars  of  the  indictment 
were  not  matters  of  common  knowledge,  for 
the  contest  between  the  Executive  and  Con- 
gress was  not  a  burning  political  issue  discussed 
in  every  household.  To  the  leaders  of  society 
it  had  been  a  tiresome  and  complicated  busi- 
ness, but  it  had  resulted  in  an  Occasion — and 
the  Occasion  was  unquestionably  great. 

Even  in  the  diplomatic  circles  the  events 
138 


IMPEACHMENT  OF  ANDREW  JOHNSON 

which  had  culminated  in  the  impending  trial 
were  but  imperfectly  understood,  and  possibly 
no  one  in  the  brilliant  audience,  that  laughed 
and  chattered  in  the  galleries,  fully  comprehend- 
ed the  situation,  except  the  representatives  of 
the  press. 

The  newspaper  men,  however,  were  familiar 
with  every  phase  of  the  mighty  struggle  over 
the  reconstruction  of  the  seceded  States  —  a 
struggle  inaugurated  before  Booth  had  re- 
moved the  one  man  who  might  have  proved 
equal  to  the  perilous  emergency  and  whose 
tact  and  self-sacrifice  might  have  saved  the 
South  from  humiliation  and  the  entire  nation 
from  irremediable  mistakes.  They  knew  that 
Andrew  Johnson  had  inherited  a  task  utterly 
beyond  his  powers,  and  they  had  watched  his 
clumsy  but  courageous  efforts  to  handle  it  with 
intense  interest  but  with  little  sympathy,  for 
the  President  was  not  a  man  of  personal  mag- 
netism who  touched  the  imagination.  He  was 
a  coarse -fibred,  right  -  hearted,  strong  -  headed, 
fearless,  honest  fighter  who  neither  asked  nor 
gave  quarter — a  good  hater,  without  the  qualities 
which  rally  and  inspire  friends — a  determined 
rather  than  a  heroic  figure,  even  when  battling 
for  the  right.     The  little  group  of  journalists  in 

139 


DECISIVE   BATTLES   OF  THE   LAW 

the  press  gallery  above  the  Vice-President's 
chair,  had  heard  his  early  denunciations  of 
the  South  applauded  and  approved  by  the 
radical  leaders  of  the  House  and  Senate,  and 
they  had  watched  his  gradual  change  of  atti- 
tude and  honest  effort  to  conform  his  impul- 
sive programme  to  the  magnanimous  policy  of 
his  illustrious  predecessor  with  misgiving. 

No  one  who  had  studied  the  man  as  they 
had  could  have  failed  to  foresee  trouble  when 
his  own  State — Tennessee — was  denied  repre- 
sentation in  the  national  councils;  and  when 
the  Executive  answ^ered  that  affront  with  a  veto 
of  the  Freedman's  Bureau  bill  every  trained 
observer  interpreted  his  action  as  a  challenge, 
and  it  required  no  gift  of  prophecy  to  predict 
that  the  defiance  would  be  instantly  met  and 
answered  b}^  the  leaders  of  Congress — men  every 
whit  as  resolute  and  masterful  as  he.  Indeed, 
covert  hostilities  had  preceded  this  first  blow 
in  the  open.  And  before  the  public  realized 
what  was  happening  a  bitter  family  feud  was 
completing  the  ruin  of  the  South. 

Only  the  blindest  of  partisans  now  deny  that 
the  President  had  the  best  interests  of  the 
whole  nation  at  heart  in  his  championing  of  the 
seceded  States,  and  even  the  severest  critics  of 

140 


IMPEACHMENT  OF  ANDREW  JOHNSON 

Congress  admit  the  sincerity  of  its  leaders  in 
safeguarding  the  principles  which  had  been 
settled  on  the  field  of  battle.  Both  sides  un- 
questionably desired  the  same  result,  but  John- 
son had  in  an  unguarded  moment  declared  his 
belief  that  the  salvation  of  the  country  lay  with 
the  old  Democratic  party,  and  such  heresy  from 
the  lips  of  a  Republican  President  aroused  every 
radical  to  the  point  of  frenzy.  From  that  instant 
a  momentous  national  problem  was  at  the  mercy 
of  party  politics,  and  compromise  was  hopeless. 
To  the  President's  plan  of  conciliation  and 
forgiveness  his  adversaries  opposed  a  policy  of 
coercion ;  to  his  vetoes  they  responded  by  pack- 
ing the  Senate  and  overriding  his  objections 
with  shouts  of  exultation ;  to  his  insistence  upon 
the  letter  of  the  Constitution  they  replied  with 
sweeping  amendments.  But  neither  threats 
nor  obstructions  intimidated  or  discouraged 
the  Executive,  and  he  closed  with  the  opposi- 
tion, grimly  determined  to  fight  to  the  bitter 
end,  regardless  of  the  consequences  to  himself 
or  others.  The  fanatics  no  sooner  disposed  of 
one  exasperating  veto  than  another,  equally 
well  drawn  and  maddeningly  logical,  was  thrust 
upon  them,  and  the  game  of  check  and  counter- 
check continued  until  Johnson's  veto  record  far 

141 


DECISIVE   BATTLES  OF  THE   LAW 

surpassed  that  of  any  other  President,  and  bade 
fair  to  eqnal  that  of  all  his  predecessors  com- 
bined. It  was  speedily  demonstrated,  however, 
that  this  direct  assault  would  never  succeed  in 
dislodging  the  legislative  enemy;  but  there  re- 
mained the  mighty  engine  of  official  patronage, 
and  it  was  not  long  before  the  unruly  House 
and  Senate  found  themselves  attacked  upon 
the  flank.  This  move  against  their  henchmen 
seriously  alarmed  the  leaders  of  the  dominant 
party,  for  they  instantly  realized  that  wholesale 
removals  from  office  would  destroy  discipline 
and  possibly  force  a  compromise,  or  even  a 
complete  capitulation  to  "  the  great  criminal  of 
the  White  House."  Not  a  moment  was  to  be 
lost  if  the  army  of  office-holders  was  to  be  pro- 
tected from  rout  or  capture,  and  the  Tenure-of- 
Office  bill  was  speedily  passed  to  avert  the 
threatened  catastrophe.  This  measure  virtually 
left  the  President  powerless  to  remove  any  offi- 
cial without  the  approval  of  the  Senate.  In  its 
original  form  the  bill  had  expressly  excepted 
members  of  the  cabinet  from  its  protection,  but 
this  concession  did  not  meet  with  the  concur- 
rence of  the  House,  which  was  in  no  mood  to 
leave  Andrew  Johnson  even  a  vestige  of  au- 
thority,   and    a    compromise    was    effected  by 

142 


IMPEACHMENT  OF  ANDREW  JOHNSON 

substituting  for  the  plain  exception  a  proviso 
that  members  of  the  cabinet  should  respectively 
hold  their  offices  during  the  term  of  the  Presi- 
dent by  whom  they  had  been  appointed  and 
for  one  month  afterwards — as  vague  and  cow- 
ardly a  phraseology  as  ever  disgraced  a  public 
statute.  Having  disarmed  their  hated  antago- 
nist, the  rabid  party  leaders  then  turned  their 
undivided  attention  upon  his  wards,  and  in  a 
frenzy  of  retaliation  they  enacted  legislation 
which  ultimately  reduced  the  South  to  the  level 
of  conquered  provinces,  and  forced  unqualified 
suffrage  upon  the  entire  Union — burdens  and 
disgraces  shared  and  suffered  by  the  nation  at 
large. 

In  all  this  disastrous  business  the  radicals 
had  had  a  powerful  ally  in  Edwin  M.  Stanton, 
Secretary  of  War,  and  when  the  President  was 
no  longer  able  to  endure  the  increasing  arro- 
gance and  opposition  of  this  important  member 
of  his  official  family  and  removed  him  from 
office,  the  House  received  the  news  with  open 
exultation.  More  than  one  exasperated  Repre- 
sentative had  previously  expressed  the  wish 
that  Johnson  would  violate  some  of  the  obnox- 
ious laws  which  had  been  forced  upon  him ;  but, 
as  time  passed,  all  hope  of  catching  him  derelict 


DECISIVE   BATTLES   OF  THE   LAW 

in  his  duties  had  practically  faded.  But  finally 
Providence  in  the  dubious  shape  of  the  Tenure- 
of-Office  Act  had  delivered  him  into  their  hands, 
and  with  indecorous  haste  and  amid  riotous 
rejoicings  the  President  of  the  United  States 
was  impeached  by  the  House  upon  charges 
promptly  presented  at  the  bar  of  the  Senate. 

At  first  the  removal  of  Stanton  was  thought 
to  be  an  all-sufficient  provocation,  but  craftier 
counsels  prevailed,  and  a  ponderous  bill  of  im- 
peachment resulted,  embracing  all  Johnson's 
alleged  offences,  from  the  misdemeanor  of  mal- 
feasance in  office  to  the  high  crime  of  bad 
manners.  In  fact,  so  multifarious  and  divergent 
were  the  accusations  against  the  President  that 
it  is  not  surprising  that  some  of  the  guests  in 
the  crowded  galleries  supposed  that  the  Chief 
Magistrate  was  on  trial  for  inebriety,  others  that 
he  had  committed  treason,  andjtill  others  that 
he  was  an  accessory  to  Lincoln's  assassination, 
as  had  so  often  been  loosely  charged  in  the  Halls 
of  Congress.  Probably  none  of  these  specula- 
tions, however,  troubled  the  fair  visitors  as  the 
Senate  dawdled  through  its  unfinished  business. 
There  were  other  and  more  interesting  matters 
demanding  attention  in  the  assembling  company 
— important  information  to  be  asked  and  given 

144 


IMPEACHMENT  OF  ANDREW  JOHNSON 

concerning  the  distinguished  occupants  of  the 
diplomatic  gallery  and  other  centres  of  interest, 
fine  points  of  fashion  to  be  noted  and  criticised 
—and  the  Chamber  was  a  babel  of  busy  tongues 
when  the  sergeant-at-arms  rose  and  commanded 
silence. 

In  the  sudden  hush  which  followed  many  of 
the  late-comers  studied  the  scene  below  them 
for  the  first  time,  and  a  glance  over  the  floor 
showed   every   Senator  in   his   place   but  one. 
That  vacancy  was  speedily  filled,  however,  for 
as  the  sergeant-at-arms  ceased  speaking,  a  tall, 
clean-shaven,  amiable-looking  man  about  fifty 
years  of  age  vacated  the  Vice-President's  chair 
and  took  the  one  unoccupied  Senatorial  post. 
The  reporters  in  the  press-gallery  nudged  one 
another  and  nodded  significantly  as  they  noted 
this  move  on  the  part  of  the  presiding  officer, 
for,  despite  his  declarations  that  he  would  assert 
all  his  privileges,  it  was  not  generally  believed 
that  Senator  Benjamin  F.  Wade,  Vice-President 
and  heir  apparent  to  the  throne,  would  have 
the  temerity  to  take  his  place  as  one  of  Andrew 
Johnson's   judges    and   vote   himself   into   the 
Presidency.     That    silent    exchange    of    seats, 
however,   removed  all  doubts,   and  every  im- 
partial  observer,    cognizant   of  the  facts,   felt 

145 


DECISIVE  BATTLES  OF  THE  LAW 

that  the  Senator  from  Ohio  had  committed  an 
offence,  not  only  against  good  taste  but  against 
good  morals  and  justice,  which  at  the  very 
outset  cast  a  doubt  upon  the  integrity  of  the 
Court.  But  the  significance  of  this  ugly  circum- 
stance was  not  comprehended  by  the  mass  of 
spectators,  and  conversation  had  already  begun 
again  when  the  Chief -Justice  of  the  United 
States,  the  Hon.  Salmon  P.  Chase,  robed  in  his 
official  black  gown,  was  ushered  into  the  Cham- 
ber and  assumed  his  place  as  presiding  officer. 

With  the  advent  of  this  distinguished  jurist 
the  scene  became  more  impressive,  and  as  he 
faced  the  curved  rows  of  desks  behind  which 
sat  fifty -fotir  Senators,  representing  twenty- 
seven  States  and  nearly  forty  millions  of  people, 
the  assemblage  seemed  to  take  on  more  dignity 
and  meaning.  The  attention  of  the  audience, 
however,  was  speedily  diverted  from  the  im- 
posing presence  of  the  judge  by  proclamation 
announcing  the  counsel  of  the  President,  and 
from  a  side  room  five  men  entered  the  Chamber 
and  seated  themselves  at  a  table  placed  at  the 
right  of  the  Chief -Justice. 

The  chair  nearest  the  assembled  Senators  was 
assigned  to  Henry  Stanbery,  ex-Attomey-Gen- 
eral  of  the  United  States,  who  had  resigned  his 

146 


IMPEACHMENT  OF  ANDREW  JOHNSON 

office  to  devote  himself  to  the  case  at  bar,  and 
whose  careful  preparation  for  both  attack  and 
defence  was  to  be  shown  in  every  phase  of  the 
proceeding. 

To  the  left  of  Stanbery  sat  Judge  Benjamin 
Curtis,  ex- Justice  of  the  Supreme  Court,  writer 
of  one  of  the  two  dissenting  opinions  in  the  Dred 
Scott  case,  leader  of  the  Massachusetts  bar,  and 
known  throughout  the  country  as  one  of  the 
most  distinguished  jurists  of  his  day.  Curtis 
was  present  at  a  great  personal  sacrifice  and 
practically  without  compensation,  and  none  of 
his  associates  accomplished  more  for  the  cause. 
Beside  Curtis  sat  one  of  the  ablest  lawyers  of 
Tennessee,  Judge  Thomas  Nelson,  a  warm  per- 
sonal friend  of  the  accused,  who  represented 
him  in  what  might  be  termed  his  individual  as 
distinguished  from  his  official  capacity,  and  who 
brought  more  personal  feeling  into  the  contest 
than  any  of  the  President's  other  counsel. 
Nelson's  reputation  in  the  profession  was  merely 
local,  but  the  man  at  his  immediate  left  was 
well  known  to  the  bar  throughout  the  country, 
and  his  keen,  thin  face  and  tall,  lank  figure  were 
familiar  to  many  laymen  in  the  audience,  for 
William  M.  Evarts  was  no  stranger  in  Washing- 
ton. He  was  then  only  at  the  threshold  of  his 
XX  147 


DECISIVE   BATTLES  OF  THE  LAW 

great  legal  career,  but  his  professional  reputa- 
tion was  fimily  established  in  his  own  State,  and 
there  were  but  few  lawyers  not  prominent  in 
politics  more  widely  known  throughout  the 
country. 

Partially  screened  from  observation  by  these 
imposing  legal  luminaries  sat  William  Groes- 
beck,  of  Cincinnati,  a  lawyer  of  grave  and 
modest  demeanor,  as  yet  a  stranger  to  the 
public,  but  destined  before  the  trial  closed  to 
make  himself  known  from  one  end  of  the  coun- 
try to  the  other. 

There  had  been  nothing  spectacular  or  even 
formal  about  the  entrance  of  the  President's 
counsel,  but  their  quiet,  dignified  bearing  and 
businesslike  gravity  impressed  even  the  casual 
observer  with  a  feeling  of  confidence.  The  mo- 
ment they  had  assumed  their  places  another 
proclamation  announced  "the  Honorable  Man- 
agers on  behalf  of  the  House  of  Representatives," 
and  six  men  marched  into  the  Chamber,  two  by 
two,  each  couple  linking  arms,  and  the  interest 
of  the  audience  immediately  centred  upon  one 
of  the  leaders — a  man  whose  large,  pudgy  body 
seemed  literally  bursting  out  of  his  extraordinary 
swallow-tail  coat,  exposing  a  broad  expanse  of 
not  too  immaculate  linen,  and  whose  massive 

148 


IMPEACHMENT    OF    ANDREW    JOHNSON 

bald  head  with  its  httle  fringe  of  oily  curls  was 
probably  familiar  to  every  occupant  of  the  gal- 
leries, for  Benjamin  Butler  had  not  hidden  his 
light  under  a  bushel.  There  was  power  in  the 
man's  coarse,  big-featured  face,  force  and  ag- 
gressiveness in  every  line,  but  his  curiously  ill- 
mated  eyes  with  their  half -closed  lids,  his  hard 
mouth  and  small,  drooping  mustache,  all  com- 
bined to  create  an  uncomfortable  impression  of 
cunning  and  insincerity,  and  his  whole  person- 
ality was  unattractive.  Accompanying  this 
pugnacious  leader  were  five  men  well  known  to 
the  best-informed  spectators  as  prominent  Con- 
gressmen and  active  opponents  of  the  Presi- 
dent's policies.  Of  these  Boutwell  and  Bing- 
ham were  able  lawyers,  but  neither  Williams 
nor  W^ilson,  the  chairman,  was  a  lawyer  of 
recognized  ability,  and  John  A.  Logan,  whose 
long  black  hair  and  flowing  mustache  added 
picturesqueness  to  the  scene,  had  no  reputation 
whatsoever  in  the  courts. 

All  eyes  were  still  focussed  on  these  official 
prosecutors,  when  the  attention  of  the  audience 
was  suddenly  diverted  to  a  solitary  figure  mov- 
ing towards  the  bar  of  the  Senate,  and  several 
of  the  managers  rose  as  a  feeble  and  emaciated 
old  man,  leaning  heavily  upon  a  cane  and  pain- 

149 


DECISIVE   BATTLES  OF  THE   LAW 

fully  dragging  a  crippled  foot  along  the  floor, 
approached  their  table.  The  appearance  of  the 
new-comer  was  pitiful  in  every  way,  but  one 
glance  at  his  fierce,  aggressive  face,  with  its  high 
protruding  cheek-bones,  grim  mouth,  and  blaz- 
ing eyes,  was  sufficient  to  convince  the  observer 
that  pity  would  be  misplaced.  Even  in  his 
prime  and  at  his  most  vindictive  moments 
Thaddeus  Stevens  had  never  appeared  more 
implacable  and  vengeful  than  he  did  when, 
with  the  hand  of  death  upon  his  shoulder,  he 
crawled  into  the  Senate-chamber  to  aid  in  the 
prosecution  of  his  bitterest  enemy.  With  the 
fanatical  zeal  of  the  early  Abolitionists,  Stevens 
had  carried  his  hatred  of  slavery  to  the  point 
where  he  regarded  himself  as  the  Heaven-ap- 
pointed avenger  of  the  negroes  and  the  scourge 
of  the  South,  and  all  who  checked  or  even  ques- 
tioned his  mission  became  the  objects  of  his 
ungovernable  wrath.  To  his  mind  Andrew 
Johnson  was  a  traitor  plotting  to  restore  slavery 
and  the  slave  power,  and  in  this  belief  he  had 
fought  him  with  the  rage  of  a  maniac  for  three 
years.  Essentially  a  man  of  peace,  he  virtually 
thirsted  for  Andrew  Johnson's  blood,  and  though 
wasted  in  body  and  bowed  with  years  he  still 
had  sufficient  strength  to  trail  his  victim.     In- 

150 


IMPEACHMENT  OF  ANDREW  JOHNSON 

deed,  as  he  declined  a  silent  invitation  to  a 
place  at  the  managers'  table,  and  drawing  a 
chair  apart  from  his  associates,  settled  himself 
to  watch  the  proceedings,  his  sallow,  thin, 
hawklike  face,  piercing  eyes,  and  coarse  black 
wig  suggested  an  aged  Indian  intent  upon  his 
prey.  The  contrast  between  his  sinister  frailty 
and  Butler's  brutal  vitality  was  suggestive,  and 
as  the  two  men  faced  the  galleries  the  whole 
impeachment  stood  personified.  Butler  em- 
bodied the  prosecution  in  the  flesh — Stevens  in 
the  spirit. 

The  judge,  jury,  and  counsel  for  the  respective 
parties  being  present,  the  sergeant-at-arms  an- 
nounced the  accusers,  and  the  House  of  Repre- 
sentatives entered  the  Chamber,  headed  by  the 
Speaker  and  the  Hon.  Elihu  B.  Washbume, 
leaning  upon  the  arm  of  the  Clerk  of  the  House. 
It  had  evidently  been  intended  that  this  en- 
trance of  the  accusing  body  should  be  the  most 
impressive  feature  of  the  solemn  proceedings, 
but  the  effect  was  marred  by  the  anxiety  of  the 
rear  ranks  to  obtain  good  seats,  and  instead  of 
a  statel}^  and  orderly  procession  something  very 
like  a  scramble  ensued.  On  former  impeach- 
ment trials  the  Senators  had  occupied  raised 
platforms  erected  on  either  side  of  the  Chief- 

151 


DECISIVE   BATTLES  OF  THE  LAW 

Justice,  but  on  this  occasion  they  had  voted  to 
keep  their  usual  seats,  and  cane-bottomed  chairs 
had  been  placed  in  the  rear  of  the  Chamber  and 
in  the  aisles  between  the  desks;  and  every 
available  square  inch  was  required  to  accom- 
modate the  one  hundred  and  ninety  members 
of  the  Lower  House  and  those  entitled  to  the 
privileges  of  the  floor. 

The  august  tribunal  was  now  complete,  and 
in  the  hush  which  followed  the  somewhat  noisy 
seating  of  the  House  the  spectators  leaned  for- 
ward, expectantly  awaiting  the  President's 
entrance.  Every  one  knew  that  he  had  not 
attended  the  preliminary  sessions  of  the  Court, 
but  it  was  the  popular  belief  that  he  would 
make  his  appearance  on  the  day  of  trial.  John- 
son had,  however,  no  intention  of  giving  his 
enemies  any  such  satisfaction,  and  in  this  and 
all  other  respects  his  attitude  in  maintaining 
the  dignity  of  his  mighty  office  was  absolutely 
beyond  criticism. 

The  absence  of  the  accused  was  naturally  a 
disappointment  to  the  mass  of  spectators,  but 
the  presence  of  both  Houses  of  Congress,  the 
Chief -Justice  of  the  United  States,  the  distin- 
guished counsel,  and  the  occasion  of  the  assem- 
blage afforded  a  spectacle  never  equalled  in  the 


IMPEACHMENT  OP  ANDREW  JOHNSON 

history  of  the  country.  To  the  foreigners  the 
proceedings  were,  of  course,  wanting  in  the 
pomp  and  circumstance  customary  in  European 
affairs  of  state.  There  were  no  resplendent 
uniforms  or  picturesque  observances;  nothing, 
in  fact,  to  catch  the  eye,  give  color  to  the  pict- 
ure, or  touch  the  imagination,  and  the  dull, 
sombre  aspect  of  the  Chamber  and  the  absence 
of  majestic  official  ceremonies  naturally  disap- 
pointed the  Diplomatic  Corps. 

The  simple  democracy  of  the  gathering  should 
have  appealed  to  all  Americans,  however;  and 
yet,  strangely  enough,  it  utterly  failed  to  im- 
press the  best-informed  element  in  the  galleries, 
and  more  than  one  thoughtful  observer  vainly 
sought  a  satisfactory  reason  for  the  obvious 
apathy.  Possibly  it  was  the  presence  of  Wade, 
prepared  to  render  a  judicial  decision  upon  an  is- 
sue vital  to  his  personal  interests ;  perhaps  it  was 
the  sight  of  Sumner,  an  open  opponent  of  the  ac- 
cused, and  other  equally  biased  partisans,  calmly 
sitting  as  judges  sworn  to  administer  impartial 
justice ;  mayhap  it  was  the  notorious  Butler  and 
the  relentless  Stevens  and  the  other  party  poli- 
ticians representing  the  prosecution;  possibly 
it  was  the  flimsiness  of  the  charge,  the  tricky 
wording  of  the  statute  involved  in  the  accusa- 

153 


DECISIVE   BATTLES  OF  THE   LAW 

tion,  and  the  technical  character  of  its  alleged 
violation;  doubtless  it  was  some  or  all  of  these 
ominous  circumstances  which  instinctively  chill- 
ed enthusiasm  and  forbade  respect,  and  before 
many  hours  the  conduct  of  the  proceedings  had 
utterly  stifled  all  impulse  to  patriotic  pride. 

The  various  proclamations  and  the  assem- 
bling of  the  Court  had  occupied  less  than  half 
an  hour,  and  without  further  loss  of  time  the 
Chief -Justice  formally  opened  the  trial  by 
directing  that  the  minutes  of  the  last  session 
be  read,  at  the  conclusion  of  which  ceremony 
Butler  immediately  rose  and  faced  the  Senate. 

In  some  respects  ''the  hero  of  Fort  Fisher" 
was  better  qualified  for  his  task  than  many  of 
his  associates.  No  abler  expounder  of  casuistry 
ever  addressed  a  jury,  and  his  doctrine  that 
law  was  ''anything  plausibly  presented  and 
persistently  maintained  "  had  been  the  key-note 
of  his  professional  career.  In  the  case  at  bar 
there  were  practically  no  facts  at  issue;  there 
were  only  law  points.  Disregarding  the  ground- 
less and  insincere  charges  interpolated  into  the 
indictment  to  bolster  up  the  real  accusation, 
the  Court  was  asked  to  decide  whether  or  not 
the  President  had  violated  the  Tenure-of -Office 
Act   in   removing    Stanton,    assuming   that   the 

^54 


IMPEACHMENT  OF  ANDREW  JOHNSON 

I 

office  of  the  Secretary  of  War  was  protected  by 

the  terms  of  that  act.  In  other  words,  the  whole 
cause  was  built  upon  an  assumed  state  of  facts, 
hearsay  evidence,  and  iTimor,  and  was  in  effect 
a  moot  case.  But  this  was  the  sort  of  material 
in  which  Butler  fairly  revelled,  and  of  which  he 
could  probably  have  made  more  before  a  jury 
than  an}^  other  lawyer  of  his  day.  But  although 
the  case  was  suited  to  his  talents,  the  jury  was 
not  the  ordinary  collection  of  laymen  to  which 
the  sophistical  advocate  was  accustomed.  Of 
the  fifty-four  Senators  who  faced  Butler,  no  less 
than  forty-four  were  law}^ers — many  of  them 
jurists  of  no  mean  caliber — men  familiar  with 
the  tricks  of  the  trade,  and  not  only  trained  to 
distinguish  between  sophistry  and  logic,  but 
qualified  to  know  a  lawyer  from  a  limb  of  the 
law. 

Seldom  in  the  history  of  the  courts  has  a 
member  of  the  bar  been  called  upon  to  address 
a  similar  body  of  legal  experts,  and  despite  his 
ingenuity  and  plausibility,  Butler  was  not  the 
type  of  practitioner  whose  utterances  on  ques- 
tions of  law  carry  weight  with  the  profession. 
Indeed,  he  himself  probably  suspected  the 
disadvantages  under  which  he  labored,  for 
instead    of    trusting    to    his    fluent    powers    of 

155 


DECISIVE   BATTLES  OF  THE   LAW 

speech,  he  amied  himself  with  a  great  sheaf  of 
notes,  and  proceeded  to  read  a  carefully  pre- 
pared address,  which  soon  set  the  galleries 
yawning,  but  delighted  the  reporters,  who 
gratefully  laid  aside  their  pads  and  pencils, 
knowing  that  copies  of  the  harangue  could  be 
had  for  the  asking. 

Despite  his  obvious  efforts  to  adapt  himself 
to  his  learned  audience  and  avoid  his  customary 
forensic  methods,  the  speaker's  opening  was 
eminently  characteristic.  He  informed  his  hear- 
ers that  the  Senate,  organized  as  a  Court  of 
Impeachment,  was  not  a  court;  that  not  being 
a  court,  it  was  bound  by  no  precedents,  and 
that  being  bound  by  no  precedents  it  could 
make  its  own  rules  of  evidence  and  generally 
be  "  a  law  unto  itself."  Having  announced  this 
convenient  theory,  which  was  certainly  well 
adapted  for  a  case  destitute  of  all  legal  proof, 
he  proceeded  to  demonstrate  its  soundness  by 
quoting  precedents  from  one  of  the  most  monu- 
mental briefs  ever  submitted  to  a  court  of  law, 
utterly  oblivious  of  the  humor  of  hurling  au- 
thorities at  a  tribunal  supposed  to  be  "a  law 
unto  itself."  This  preliminary  fiction  was, 
however,  only  a  forerunner  of  those  that  were 
to   follow,    and   starting   with   the   proposition 

156 


IMPEACHMENT  OF  ANDREW  JOHNSON 

that  Johnson  was  merely  filling  out  Lincoln's 
unexpired  term,  the  champion  casuist  argued 
that  Stanton  could  not  be  removed  from  office 
under  the  Tenure-of-Office  Act  because  he  had 
been  appointed  by  Lincoln,  and  the  law  pro- 
tected all  officials  during  the  term  of  the  Presi- 
dent by  whom  they  had  been  appointed.  John- 
son's term  being  Lincoln's  term,  the  President 
had  violated  the  law  by  removing  the  Secretary 
of  War,  and  thereby  forfeited  his  office.  The 
jury-exhorter  then  turned  to  the  more  familiar 
field  of  cheap  invective,  and  the  bored  and 
sleepy  audience  roused  itself  to  listen  to  stormy 
eloquence  in  which  the  President's  opposition 
to  the  Congress  was  denounced  as  criminal,  and 
wordy  chastisement  administered  for  the  sin  of 
criticising  political  opponents.  A  little  of  this 
diversion,  however,  soon  palled  upon  the  gal- 
leries, and  at  the  end  of  three  hours  the  orator 
reHeved  the  suffering  visitors  by  closing  with 
a  panegyric  on  the  great  example  which  the 
American  people  were  about  to  afford  the  won- 
dering nations  of  the  earth  by  peacefully  re- 
moving an  obnoxious  ruler,  "while  your  king, 
O  Monarchist!  if  he  becomes  a  tyrant,  can  only 
be  displaced  through  revolution,  bloodshed,  and 
civil   war!"     This    absurd   fustian   must   have 

157 


DECISIVE   BATTLES  OF  THE   LAW 

fairly  disgusted  those  Senators  who  knew  in 
their  heart  of  hearts  that  the  power  of  impeach- 
ment was  being  misused  for  party  purposes. 
Indeed,  before  the  weary  day  ended  there  was 
some  evidence  of  a  reaction  in  the  President's 
favor,  and  the  case  had  already  begun  to  totter. 
There  was  plenty  of  elbow-room  in  the 
galleries  at  the  next  session,  but  the  proceedings 
had  scarcely  opened  when  the  most  interesting 
and  important  question  of  the  whole  trial  was 
presented,  the  decision  of  which  was  destined 
to  have  a  far-reaching  result.  In  ordinary 
courts  of  law  the  presiding  justice  passes  upon 
the  admissibility  of  all  evidence,  but  the  mo- 
ment Judge  Chase  attempted  to  exert  this 
prerogative  his  authority  was  challenged.  The 
Senate  and  not  the  Chief  -  Justice  was  the 
proper  judge  of  what  testimony  should  be 
admitted  or  excluded,  contended  the  man- 
agers, who  for  some  mysterious  reason  sus- 
pected Chase  of  favoring  the  accused,  and 
after  a  sharp  debate  the  Senators  decided  that 
they  would  reserve  to  themselves  the  right  of 
deciding  what  testimony  they  should  hear.  The 
motive  of  this  extraordinary  move  was  only  too 
obvious.  It  was  the  sort  of  justice  which  the  cur 
proposed  for  the  mouse  in  Alice's  Wonderland: 

158 


IMPEACHMENT  OF  ANDREW  JOHNSON 

''I'll  be  judge— I'll  be  jury!" 
Said  cunning  old  Fury. 
"I'll  try  the  v/hole  cause 
And  condemn  you  to  death!" 

and  the  final  outcome  can  be  directly  traced  to 
this  flagrant  impropriety. 

It  is  extremely  doubtful  if  there  ever  was  a 
trial  in  which  fewer  facts  were  in  dispute  than 
in  the  case  at  bar,  but  for  six  days  the  managers 
struggled  to  substantiate  the  voluminous  im- 
peachment, at  the  end  of  which  period  all  that 
was  proved  was  what  stood  admitted  by  the 
pleadings — namely,  that  the  President  had  at- 
tempted to  remove  his  Secretary  of  War,  and 
that  some  two  years  previous  to  this  more  than 
doubtful  offence  he  had  indulged  in  undignified 
utterances  at  the  expense  of  his  political  enemies. 

On  the  9th  of  April,  the  prosecution  having 
rested.  Judge  Curtis  opened  for  the  defence 
before  an  audience  filling  every  nook  and  cranny 
of  the  Chamber.  Curtis  enjoyed  a  very  different 
reputation  in  the  profession  from  the  leading 
counsel  for  the  prosecution.  He  was  a  jurist  of 
recognized  authority,  and  there  was  no  lawyer 
in  the  Senate  but  could  well  afford  to  receive 
instruction  from  his  lips.  W^ell  aware  of  But- 
ler's failure  to  impress  his  fellow-practitioners, 

159 


DECISIVE   BATTLES  OF  THE  LAW 

the  speaker  addressed  the  tribunal  with  ad- 
mirable dignity  and  tact,  speaking  without 
notes,  and  arguing  as  a  lawyer  to  lawyers,  every 
sentence  aimed  at  the  best  professional  talent 
among  the  Republicans  of  the  Chamber.  In 
the  little  group  of  Democrats  there  were  several 
lawyers  of  national  repute,  but  their  votes  were 
assured,  whereas  there  were  a  dozen  or  more 
Republicans  open  to  legal  persuasion,  and  if 
even  a  small  minority  of  those  men  could  be  won 
from  party  allegiance  by  a  purely  intellectual 
appeal,  all  danger  of  conviction  would  be  over. 

With  a  knowledge  born  of  long  experience  in 
the  appellate  courts  the  distinguished  advocate 
instantly  struck  at  the  heart  of  the  case,  de- 
molishing Butler's  "  law  unto  itself  "  theory  with 
a  sentence,  and  attacking  the  cowardly  worded 
Tenure-of-Office  Act,  showing  that  it  was  not 
intended  to  prevent  the  President  from  remov- 
ing Stanton,  or  if  it  were,  that  it  was  so  badly 
constructed  that  it  had  utterly  failed  to  effect 
its  purpose. 

''I  am  here,"  he  began,  *'to  speak  to  the 
Senate  of  the  United  States  sitting  in  its  judicial 
capacity  as  a  Court  of  Impeachment  presided 
over  by  the  Chief-Justice  of  the  United  States 
for  the  trial  of  the   President  of  the  United 

1 60 


IMPEACHMENT  OF  ANDREW  JOHNSON 

States.  .  .  .  The  Honorable  Managers  have  in- 
formed you  that  this  is  not  a  court,  and  what- 
ever may  be  the  character  of  this  body  it  is 
bound  by  no  law.  .  .  .  Each  one  of  you  before 
you  took  your  place  here  called  God  to  witness 
that  he  would  administer  impartial  justice  in 
this  case  according  to  the  Constitution  and  the 
laws." 

If  any  one  imagined,  continued  the  speaker, 
that  this  oath  invested  him  with  authority  to 
make  up  his  own  laws  as  occasion  required,  or 
as  his  desires  dictated,  his  ideas  of  administer- 
ing impartial  justice  were  not  those  approved 
in  the  profession  of  the  law. 

Butler's  whole  argument  was  shattered  by 
this  blow,  and  his  elaborate  fiction  that  John- 
son's term  was  Lincoln's  was  almost  as  speedily 
exposed.  ''At  the  time  of  Mr.  Stanton's  re- 
moval, was  he  under  the  protection  of  the 
statute  entitling  cabinet  officers  to  hold  their 
positions  during  the  term  of  the  President  who 
appointed  them?"  inquired  the  jurist.  "The 
Honorable  Managers  say  yes,"  he  continued, 
"because  they  say  Mr.  Johnson  is  merely  serv- 
ing out  the  residue  of  Mr.  Lincoln's  term.  But 
is  that  so?  The  (Presidential)  limit  of  four 
years   is   not   an   absolute   limit.     Death   is   a 

i6i 


DECISIVE   BATTLES   OF  THE  LAW 

limit.  A  conditional  limitation,  as  the  lawyers 
call  it,  is  imposed  on  the  tenure  of  his  office. 
There  is  no  more  propriety  in  calling  the  term 
during  which  Mr.  Johnson  holds  the  office  of 
President  a  part  of  Mr.  Lincoln's  tenii  than 
there  would  be  in  saying  that  one  sovereign 
who  succeeds  another  by  death  holds  a  part  of 
his  predecessor's  reign." 

This  terse,  logical,  legal  presentment  of  the 
main  issue  caught  and  held  the  attention  of 
every  lawyer  in  the  Chamber,  and  at  the  close 
of  his  masterly  dissection  of  the  eleven  articles 
Curtis  might  safely  have  rested  his  case,  for 
devotion  to  the  law  was  second  nature  to  some 
of  the  Senate,  and  despite  the  bias  and  passion 
of  party  feuds  they  responded  to  the  professional 
touch. 

There  was  at  least  one  layman,  however, 
among  the  open-minded  Senators  to  whom  the 
strictly  legal  argument  may  not  have  appealed 
with  convincing  force;  but  at  the  close  of 
Curtis 's  remarkable  address,  which  occupied  the 
best  part  of  two  days,  an  episode  occurred  which 
was  calculated  to  arouse  the  indignation  of  lay- 
men and  lawyers  alike. 

General  Lorenzo  Thomas,  a  respected  officer 
of  the   army,   appointed  by  the   President  as 

162 


IMPEACHMENT  OF  ANDREW  JOHNSON 

Secretar}^  of  War  ad  interim  after  Stanton's 
removal,  was  called  to  the  stand  to  show, 
among  other  things,  that  Johnson's  purpose  in 
appointing  him  was  to  create  an  issue  for  the 
courts,  and  thus  decide  the  constitutionality  of 
the  Tenure-of-Office  Act.  General  Thomas  was 
an  amiable  man,  well  advanced  in  years,  sol- 
dierly in  appearance  and  bearing,  and  when  he 
took  the  stand,  dressed  in  full  uniform,  and  gave 
his  testimony,  it  was  evident,  despite  his  amus- 
ing loquacity,  that  he  desired  to  relate  the  few 
facts  within  his  knowledge  as  accurately  as 
possible.  But  the  unsophisticated  witness  gave 
Butler  an  opportunity  to  play  to  the  galleries, 
and  knowing  his  man,  and  having,  so  the  story 
goes,  an  old  grudge  to  settle  dating  back  to  his 
removal  as  military  Governor  of  Louisiana,  he 
attacked  the  General  on  cross-examination  with 
all  the  weapons  at  the  command  of  an  unscrupu- 
lous practitioner,  hectoring  and  bullying  the 
honest  old  soldier,  and  tricking  him  into  contra- 
dictions and  foolish  answers,  until  the  thought- 
less in  the  gallery  roared. 

This  sorry  exhibition  was  soon  followed, 
however,  by  an  outrage  so  gross  that  it  dis- 
credited the  whole  proceeding,  and  gave  the 
finishing  -  touch    to    the   managers'    blundering 

la  1 63 


DECISIVE   BATTLES  OF  THE   LAW 

campaign.  In  the  gorgeous  uniform  of  a  lieu- 
tenant-general,  Sherman  took  the  stand  and 
proceeded  to  testify  that  the  President  had 
offered  to  appoint  him  Secretary  of  War  on  the 
understanding  that  the  legahty  of  his  appoint- 
ment should  be  tested  in  the  courts,  the  object 
of  the  testimony  being  to  show  Mr.  Johnson's 
good  faith,  but  the  prosecution  immediately  ob- 
jected to  any  proof  of  the  President's  motives; 
and  when  Gideon  Welles,  Secretary  of  the  Navy, 
took  the  stand  to  report  the  deliberations  of  the 
cabinet  over  the  Tenure-of- Office  Act,  Butler 
and  his  assistants  were  instantly  up  in  arms. 

In  vain  the  defence  protested  that  the  Presi- 
dent, being  charged  with  an  intentional  violation 
of  the  laws,  should  be  permitted  to  refute  the 
motive  attributed  to  his  conduct,  but  the  man- 
agers knew  the  vital  importance  of  the  proposed 
testimony,  and  they  fought  it  tooth  and  nail. 
Finally  the  Chief -Justice  ruled  that  the  proof 
was  relevant  and  admissible,  but,  a  Senator 
objecting,  the  question  was  submitted  to  the 
Senate,  which  promptly  overruled  the  highest 
judicial  authority  in  the  country  and  refused 
to  listen  to  the  proof. 

A  more  shameless  denial  of  justice  can  scarcely 
be  imagined;   but  the  President's  counsel  were 

164 


IMPEACHMENT  OF  ANDREW  JOHNSON 

men  of  unlimited  resource  and  indomitable  cour- 
age, and  they  straightway  devised  a  means  of 
spreading  the  facts  upon  the  record  indirectly, 
with  the  same  or  even  greater  force  than  they 
would  have  had  if  introduced  directly.  With- 
out the  loss  of  a  moment  Mr.  Evarts  arose  and 
calmly  offered  to  prove  on  behalf  of  his  client 
that  the  members  of  the  cabinet  (including  Mr. 
Stanton)  had  advised  the  President  that  the 
Tenure-of -Office  bill  was  unconstitutional,  and 
that  the  duty  of  preparing  the  veto  message 
had  been  assigned  to  Mr.  Stanton  himself,  and 
would  have  been  written  by  him  had  he  not 
been  in  ill  health,  and  that,  as  it  was,  he  had 
actually  assisted  Seward  in  draughting  it. 

The  sensation  created  by  this  announcement 
can  well  be  imagined,  for  it  practically  demon- 
strated that  the  President  was  being  arraigned 
for  following  the  counsel  of  the  friend  and  ally 
of  his  accusers,  but  the  partisan  Senators  sought 
to  cover  their  consternation  by  solemnly  voting 
to  reject  the  proposed  proof. 

With  significant  calmness  and  a  challenging 
gaze  from  which  there  was  no  escape,  Mr.  Evarts 
then  offered  to  prove  that  the  President  had 
submitted  the  question  as  to  whether  or  not  Mr. 
Lincoln's  appointees  were  subject  to  removal  un- 

I6S 


DECISIVE  BATTLES  OF  THE  LAW 

der  the  Tenure-of-Office  Act  to  the  members  of 
his  cabinet,  including  Mr.  Stanton,  and  had  been 
advised  by  them  that  he  could  remove  any  such 
appointee.  In  other  words,  that  Mr.  Stanton, 
the  protege  of  Congress,  whose  dismissal  was 
declared  criminal  by  the  impeachment,  had  him- 
self approved  the  President' s  criminality. 

All  this  testimony  was  deemed  proper  by  the 
Chief -Justice,  but  his  decision  was  challenged 
and  reversed  by  the  majority  of  the  Senate, 
callous  to  all  pleas  but  party  expediency,  and 
not  one  word  of  testimony  on  any  of  these  vital 
subjects  was  permitted.  The  exclusion  of  these 
facts,  however,  spoke  louder  than  words.  Pub- 
lic opinion  throughout  the  country  instantly 
revolted  at  this  indecent  attempt  to  suppress  the 
truth,  and  more  than  one  stanch  Republican 
Senator  became  disgusted  at  such  mockery  of 
justice. 

Secretary  Welles  having  been  forced  to  leave 
the  stand  without  testifying,  it  was  useless,  in 
the  face  of  the  Senate's  rulings,  to  prolong  the 
struggle,  and  on  the  sixteenth  day  of  the  trial 
Mr.  Evarts  and  his  associates  rested  their  case. 
The  Senators  thereupon  voted  a  short  adjourn- 
ment to  enable  the  respective  counsel  to  pre- 
pare for  the  summing  up. 

1 66 


IMPEACHMENT    OF    ANDREW   JOHNSON 

Possibly  no  body  of  men  anywhere  in  the 
world  was  better  equipped  than  the  Senate  to 
withstand  the  deluge  of  words  which  was  to 
descend  upon  it  during  the  succeeding  fortnight. 
Logan  mercifully  reduced  his  contribution  to 
writing,  and  Stanbery,  Wilson,  and  Stevens  were 
incapacitated  by  illness  from  taking  more  than 
a  nominal  part  in  the  oratorical  contest;  but 
Boutwell,  Williams,  Bingham,  Nelson,  Groes- 
beck,  and  Evarts  drained  the  language  in  their 
efforts  to  support  and  refute  the  charges  against 
the  President,  without  apparently  convincing 
even  one  of  their  auditors  by  anything  they 
said,  for  Butler  and  Curtis  had  covered  the 
entire  case  in  their  respective  openings,  and 
there  was  nothing  in  the  testimony  which 
changed  the  situation. 

Nelson's  address  was  mainly  notable  for  its 
passionate  eulogy  of  the  President,  and  Will- 
iams's, while  less  notable,  was  correspondingly 
bitter  in  denunciation.  Much  had  been  ex- 
pected of  Boutwell,  but  he  not  only  failed  to 
rise  to  the  occasion,  but  exposed  himself  to 
unsparing  ridicule  by  indulging  in  childishly 
extravagant  metaphor  and  exaggeration.  In- 
deed, Evarts  almost  laughed  the  case  out  of 
court   at  his   expense,   and   the  jaded   Senate 

167 


DECISIVE  BATTLES  OF  THE  LAW 

actually  listened  when  the  great  New  York 
lawyer,  in  the  course  of  a  masterful  speech, 
turned  aside  to  flay  his  indiscreet  opponent. 

With  the  empty  issue  at  bar  it  was  wellnigh 
hopeless  for  any  advocate  to  rise  to  great 
heights,  but  Evarts  and  Groesbeck  almost 
achieved  the  impossible,  and  the  Cincinnati 
lawyer,  who  had  remained  imobtrusively  in  the 
background  until  he  rose  to  make  his  argument, 
not  only  relieved  the  tedium  of  the  theme,  but 
forced  the  tribute  of  unremitting  attention  from 
his  hearers,  and  won  the  only  legal  reputation 
which  resulted  directly  from  the  trial. 

Bingham's  long  closing  address  was  in  no 
way  remarkable,  either  for  adroitness  or  elo- 
quence, but  the  personnel  of  the  galleries  was 
very  different  from  that  of  the  opening  days, 
and  at  the  conclusion  of  his  harangue  he  was 
greeted  with  a  burst  of  suspiciously  unprovoked 
applause,  which  continued  until  the  galleries 
were  cleared,  the  exhausted  Senators  speedily 
following  the  ejected  public  with  the  relief  of 
prisoners  released  from  torture. 

But  although  the  formal  arguments  were 
closed,  the  wavering  Senators  had  no  sooner 
left  the  Chamber  than  they  found  themselves 
subjected  to  a  very  different  sort  of  persuasion 

i68 


IMPEACHMENT    OF  ANDREW  JOHNSON 

from  that  which  had  been  officially  urged  upon 
them,  and  for  almost  two  weeks  they  were 
pestered,  persecuted,  and  actually  threatened 
with  every  form  of  political  and  private  argu- 
ment in  the  effort  to  make  their  opinions  con- 
form to  that  of  the  majority. 

Despite  the  unparalleled  efforts  which  had 
been  made  to  anticipate  the  judgment  of  the 
Court,  the  event  was  still  in  doubt  when  the 
Senate  assembled  on  the  sixteenth  day  of  May 
to  record  its  verdict,  and  the  galleries  were 
again  crowded  to  their  utmost  capacity,  while 
great  throngs  of  spectators  were  massed  in  and 
around  the  Capitol.  By  noon  all  the  managers 
were  present  and  all  the  President's  counsel 
except  Judge  Curtis;  every  Senator,  with  the 
exception  of  Grimes  and  Howard,  was  at  his 
post;  the  entire  House  of  Representatives  was 
in  attendance;  the  Chief- Justice  occupied  the 
chair,  and  just  before  the  Chamber  was  called 
to  order  the  doors  opened,  and  Howard,  who 
had  arrived  at  the  Capitol  on  a  stretcher,  was 
practically  carried  to  his  seat.  Howard's  vote 
was  regarded  as  pledged  to^  conviction,  and  the 
hopes  of  the  President's  enemies  rose  at  his  appear- 
ance. There  now  remained  only  one  vacant  place, 
and  that  of  a  man  likely  to  favor  the  accused. 

i6o 


DECISIVE   BATTLES  OF  THE  LAW 

The  Chief- Justice's  gavel  fell,  and  after  the 
majority  of  the  members  had  decreed  that  the 
last  article  of  the  impeachment  should  be  the 
first  voted  upon,  Edmunds  broke  the  solemn 
silence  by  moving  that  the  Senate  proceed  to 
judgment.  Glancing  anxiously  over  the  room. 
Senator  Fessenden  rose  to  urge  an  adjournment 
until  Grimes  could  be  present,  but  before  his 
plea  was  concluded  the  doors  again  opened,  the 
missing  Senator,  more  dead  than  alive,  was 
supported  to  his  place,  and  the  High  Court  of 
Impeachment  presented  a  full  bench. 

Acting  upon  the  order  of  the  Senate,  the 
Chief- Justice  thereupon  directed  the  secretary 
to  read  the  last  article  of  the  impeachment,  the 
one  count  in  the  long  indictment  which  was  so 
worded  as  to  insure  a  stronger  vote  than  any  of 
the  other  ten;  and  at  the  conclusion  of  this 
formality  Judge  Chase  rose,  and  facing  the 
fascinated  audience,  commanded  the  secretary 
to  call  the  roll. 

The  first  Senator  in  alphabetical  order  was 
Anthony,  of  Rhode  Island,  one  of  the  waverers 
suspected  of  party  disloyalty  and  the  subject  of 
much  attention  during  the  adjournment,  and 
as  he  rose  and  faced  the  Chief -Justice  a  death- 
like stillness  settled  upon  the  Chamber. 

170 


IMPEACHMENT  OF  ANDREW  JOHNSON 

"Mr.  Senator  Anthon}^,  how  say  you?"  ques- 
tioned the  distinguished  jurist.  ''Is  the  re- 
spondent, Andrew  Johnson,  President  of  the 
United  States,  guilty  or  not  guilty  of  a  high 
misdemeanor  as  charged  in  this  article?" 

''Guilty,"  answered  the  suspected  Senator, 
and  the  managers  and  party  leaders  settled 
back  comfortably  in  their  chairs. 

Hundreds  of  pencils  kept  tally  as  the  voting 
proceeded,  and  it  was  soon  apparent  that  party 
discipline  was  being  strictly  maintained,  the 
Democrats  without  exception  recording  nega- 
tive votes,  and  the  Republicans  exhibiting  un- 
broken ranks.  Indeed,  Simon  Cameron  was  so 
zealous  in  his  party  allegiance  that  he  blurted 
out  "  guilty!"  before  the  Chief -Justice  completed 
his  question,  and  for  a  moment  the  solemnity  of 
the  proceedings  was  threatened  by  the  titter 
which  greeted  his  performance.  Suddenly,  how- 
ever, there  was  a  sound  which  dismayed  some 
of  the  satisfied  managers,  for  Senator  Fessenden, 
of  Maine,  answered  "  not  guilty  "  to  the  presiding 
officer's  inquiry,  and  destroyed  all  hope  of  com- 
plete party  harmony.  Fessenden 's  loyalty  had 
been  long  under  suspicion,  but  there  were  those 
who  believed  that  neither  he  nor  any  other 
Senator  would  dare  oppose  the  majority  at  the 

171 


DECISIVE   BATTLES  OF  THE  LAW 

final  hour.  Nevertheless,  Grimes  struggled  to 
his  feet  a  few  moments  later  and  recorded  his 
belief  in  the  President's  innocence,  and  Hender- 
son, of  Missouri,  followed  his  example.  Before 
the  clerk  reached  the  name  of  Senator  Ross,  of 
Kansas,  however,  twenty-four  votes  had  been 
recorded  for  conviction,  ten  more  were  practi- 
cally pledged,  and  only  thirty-six  were  neces- 
sary to  convict. 

Ross  was  a  silent  man,  who  had  wrapped 
himself  in  a  mantle  of  dignity  and  refused 
to  discuss  the  case  or  to  allow  any  one 
to  approach  him  concerning  it  outside  the 
Senate  Chamber,  and  his  opinion  was  the  only 
one  about  which  no  information  of  any  sort 
had  been  procurable.  If  he  voted  ''guilty," 
the  im.peachment  was  almost  certain  of  success; 
if  ''not  guilty,"  his  example  on  the  wavering 
Republicans  might  work  disaster,  and  the  au- 
dience sat  spellbound  as  the  Chief -Justice  voiced 
his  solemn  question.  Then  for  the  first  time 
Ross  broke  his  exemplary  silence  and  recorded 
a  vote  of  acquittal.  From  that  tense  moment 
the  hopes  of  the  party  politicians  sank,  flicker- 
ing fitfully  after  Lyman  Trumbull  refused  to 
follow  their  dictation,  and  disappearing  as  Van 
Winkle  placed  his  independence  upon  record, 

172 


IMPEACHMENT  OF  ANDREW  JOHNSON 

leaving  Wade  to  the  inglorious  distinction  of 
futilely  recording  a  vote  in  favor  of  elevating 
himself  into  the  Presidential  chair. 

But  the  final  vote,  thirty -five  to  nineteen, 
lacking  only  one  of  conviction,  was  too  nearly 
a  party  triumph  to  justify  surrender,  and  under 
whip  and  spur  other  votes  were  subsequently 
forced  on  the  second  and  third  articles  with 
the  same  result.  Then  the  disappointed  ma- 
jority, determined  that  the  President  should 
not  enjoy  the  satisfaction  of  a  complete  ac- 
quittal, adjourned  sine  die  without  taking  a 
vote  on  the  remaining  articles,  the  crowd  in 
the  galleries  and  corridors  melted  away,  and 
the  momentous  impeachment  ended. 

Quietly  retiring  to  Tennessee  at  the  expira- 
tion of  his  Presidential  term,  Andrew  Johnson 
began  to  plan  the  most  dramatic  return  to  pub- 
lic life  recorded  in  American  history.  Offering 
himself  as  a  candidate  for  the  United  States 
Senate,  he  entered  heart  and  soul  into  the  fierce 
campaigns  that  followed,  and  undeterred  by 
reverses,  delays,  disappointments,  and  well- 
nigh  insurmountable  obstacles,  fought  for  the 
only  vindication  he  craved.  At  last,  seven 
years  after  the  great  trial,  he  entered  the 
Chamber  which  had  witnessed  his  arraignment, 

173 


DECISIVE   BATTLES  OF  THE   LAW 

and  standing  before  his  former  judges  on  the 
very  spot  where  his  enemies  had  hoped  to  see 
him  crushed  and  humbled,  and  gazing  steadily 
into  the  eyes  of  Vice-President  Wilson,  he  took 
the  oath  of  office  as  a  Senator  from  Tennessee. 
Then  and  not  till  then  did  the  curtain  fall 
upon  the  first  and  only  impeachment  of  a 
President  of  the  United  States. 


VI 


THE  ALABAMA   ARBITRATION: 
AN    INTERNATIONAL     LAWSUIT 

THE  Hotel  de  Ville  of  Geneva,  Switzerland, 
an  unpretentious  public  building  of  ancient 
origin,  became  the  centre  of  interest  for  at  least 
two  of  the  great  family  of  nations  on  June  15, 
1872,  and  attracted  the  attention  of  the  entire 
diplomatic  world,  for  on  that  day  the  arbitrators 
of  the  Alabama  claims  were  to  meet  within  its 
walls  and  attempt  to  settle  an  international 
dispute  which  had  more  than  once  brought 
England  and  America  to  the  verge  of  war.  Had 
it  been  absolutely  certain  that  the  officials 
would  proceed  with  their  work  on  the  appointed 
day,  there  would,  perhaps,  have  been  less  gen- 
eral interest  in  the  event,  but  for  months  it  had 
been  an  open  secret  that  England  was  in  any- 
thing but  an  amicable  mood,  and  there  were 
rumors  that  she  intended  at  the  last  mo- 
ment  to  withdraw   from   the   arbitration  and 

175 


DECISIVE  BATTLES  OF  THE  LAW 

repudiate  the  treaty  by  which  it  had  been  au- 
thorized. 

But  although  the  poHtical  sky  was  dark,  a 
fairer  morning  never  dawned  than  that  which 
greeted  Geneva  on  the  day  of  trial.  Long  be- 
fore noon  a  group  of  experienced  newspaper 
men,  including  several  well-known  English  and 
American  special  correspondents,  gathered  at 
the  Hotel  de  Ville;  but  as  they  lounged  about 
its  picturesque  entrance,  comparing  notes  on 
the  coming  event,  it  was  speedily  discovered 
that  none  of  them  possessed  any  inside  informa- 
tion. Beyond  the  fact  that  all  the  arbitrators 
were  in  town,  and  that  both  the  contending 
nations  were  fully  represented  by  close-mouthed 
counsel,  there  was  no  news  to  report.  Rumor 
still  had  it,  however,  that  England  would  re- 
pudiate her  agreement  to  arbitrate;  and  if  she 
did  so,  it  was  said  that  America  would  demand 
judgment  against  her  by  default,  no  matter 
what  the  consequences  might  be.  There  was 
another  report  that  the  clash  had  already  oc- 
curred, and  that  the  arbitrators  had  abandoned 
their  mission  and  would  not  even  attempt  to 
hold  a  session;  but  this  was  soon  contradicted 
by  the  arrival  of  porters  and  messengers  bearing 
books  and  papers  for  the  tribunal,  and  as  they 

176 


THE  ALABAMA   ARBITRATION 

carried  their  heavy  burdens  through  the  paved 
court -yard  to  the  cobble-stone  stairway,  up 
which  in  early  times  the  State  dignitaries  rode 
their  horses  to  the  council-chamber,  the  journal- 
ists hastily  followed  them,  intent  upon  report- 
ing every  preliminary  detail.     At  the  door  of 
the    "  Salle    des    Conferences, "    however,    they 
were  summarily  halted  by  a  Swiss  functionary  in 
scarlet  and  yellow,  who  politely  but  firmly  in- 
formed them  that  none  but  the  arbitrators  and 
the  English  and  American  officials  were  to  be 
admitted    to   the   audience  -  chamber.      Disap- 
pointing as  this  announcement  was,  it  did  not 
discourage  the  special  correspondents,  who  re- 
lied on  the  influence  of  their  journals  to  obtain 
the  usual  privileges,  little  dreaming  that  in  the 
guarding  of  its  secrets  and  in  many  other  re- 
spects the  impending  proceeding  was  to  create 
new  precedents  and  furnish  notable  exceptions 
to   several   well-established   rules.     Meanwhile, 
all  the  reporters,  great  and  small,  remained  in 
the   anteroom,   watching  the  stacks  of  books 
disappear  through  the  guarded  door,  and  vaguely 
wondering  how  many  of  those  ponderous  tomes 
the  arbitrators  had  actually  read. 

The  American  Case,  as   the  history   of  the 
claims  was  called,  was  indeed  a  small  library  in 

177 


DECISIVE   BATTLES  OF  THE   LAW 

itself,  consisting  of  no  less  than  eight  bulky 
volumes,  comprising  more  than  five  thousand 
printed  pages,  and  the  English  documents  filled 
three  similar  books  of  nearly  three  thousand 
more.  These  eleven  volumes,  numerous  sets  of 
which  had  been  prepared  in  French  as  well  as 
in  English,  were,  however,  merely  the  prelimi- 
nary pleadings  which  had  been  exchanged  by 
the  parties  when  the  tribunal  of  arbitration 
had  been  formally  organized  on  December  5th 
of  the  previous  year.  Three  months  later  the 
agents  of  the  respective  governments  had  sub- 
mitted ''counter  cases,"  and  these  supple- 
mentary proofs  had  added  six  more  volumes  to 
the  record,  of  which  England  had  contributed 
four  and  America  two.  But  although  this  mass 
of  evidence  was  discouraging  to  the  laymen,  it 
was  far  less  formidable  than  it  looked,  and  every 
well  equipped  correspondent  of  the  press  was 
already  more  or  less  familiar  with  the  American 
Case,  the  contents  of  which  had  exasperated 
England  to  the  point  of  repudiating  a  solemn 
treaty.  Indeed,  the  wide-spread  discussion  of 
those  volumes  had  given  the  foreign  press  a 
knowledge  of  the  controversy  which  it  would 
never  have  otherwise  possessed,  and  as  public 
attention   had  been   particularly   attracted    to 

178 


THE  ALABAMA   ARBITRATION 

America's  documents,  the  story  of  her  grievance 
was  far  more  generally  understood  than  was 
England's  defence. 

That  story  was  ably  told  in  the  official  pages 
— not,  perhaps,  with  all  the  allowances  and  re- 
serves which  a  wholly  judicial  review  would  de- 
mand— but  with  earnest  conviction  and  scrupu- 
lous fidelity.  It  opened  with  a  recital  of  the 
events  leading  to  the  Civil  War  in  the  United 
States,  and  disclosing  the  prompt  request  of  the 
Secretary  of  State  that  no  decisive  action  should 
be  taken  by  the  English  government  touching 
its  attitude  towards  the  contending  forces  until 
the  newly  appointed  American  minister,  then 
on  his  way  to  London,  could  communicate  the 
views  of  his  government.  Nevertheless,  it  ap- 
peared that  the  first  news  which  had  greeted  Mr. 
Adams  on  his  arrival  had  been  the  Queen's 
proclamation  of  neutrality,  and  before  he  had 
been  long  at  his  post  the  unfriendly  attitude 
of  official  England  became  painfully  apparent. 
Another  American  had,  seemingly,  more  in- 
fluence with  the  English  government  than  the 
accredited  diplomat,  for  Captain  James  Bulloch, 
late  of  the  United  States  navy,  was  busy  at  the 
port  of  Liverpool  executing  commissions  for  the 
Confederate  government,  and  all  Mr.  Adams's 

'3  179 


DECISIVE   BATTLES  OF  THE  LAW 

official  protests  against  his  activities  fell  upon 
unheeding  ears.  In  vain  he  reported  that  a 
vessel  called  the  Oreto,  in  course  of  construction 
at  the  Miller  yards  at  Birkenhead,  was  designed 
for  a  hostile  errand  against  the  United  States. 
The  Foreign  Office  was  polite  but  incredulous, 
replying  that  official  inspection  by  the  customs 
officials  failed  to  disclose  any  irregularity  or  to 
confirm  the  minister's  suspicions  in  any  manner. 
Undiscouraged  by  this  rebuff,  Mr.  Adams  ad- 
vised Lord  Russell  of  the  situation  day  after 
da}^  by  word  of  mouth  and  written  communica- 
tion, and  warned  him  of  the  inevitable  result, 
until  finally  the  Oreto  sailed  away  to  become  the 
Florida,  and  begin  the  work  of  driving  American 
commerce  from  the  seas. 

Meanwhile  the  keel  of  a  mysterious  vessel 
known  as  the  2go  had  been  laid  at  the  Lairds' 
yards  in  Birkenhead,  and  Mr.  Adams  soon  re- 
ported Captain  Bulloch's  interest  in  her,  follow- 
ing this  with  surprisingly  accurate  details  of  her 
construction  and  mission ;  but  all  the  investiga- 
tions of  the  English  officials  failed  to  unearth 
what  Mr.  Adams's  agents  had  readily  discovered. 
The  2po,  it  was  admitted,  might  possibly  be 
adapted  for  a  war- vessel,  but  there  were  no  guns 
upon  her,  and  her  mysterious  numerals  merely 

1 80 


THE  ALABAMA   ARBITRATION 

indicated  her  dock-yard  name,  she  being  the 
290th  vessel  constructed  by  the  Lairds/  Her 
real  name,  according  to  the  records,  was  the 
Enrtca,  by  which  she  had  been  regularly  chris- 
tened at  her  launching,  and  there  was,  to  the 
official  mind,  no  cause  for  her  detention.  All 
this  was  solemnly  reported  by  the  Foreign  Office, 
and  it  was  almost  impossible  for  the  American 
minister  to  appear  unconscious  of  the  veiled 
insincerity  of  these  official  communications. 
But  Mr.  Adams  shut  his  ears  to  all  that  ruffled 
the  temper,  and,  keeping  his  eyes  wide  open, 
began  preparing  a  case  against  Great  Britain, 
knowing  that  sooner  or  later  there  must  be  a 
day  of  reckoning.  In  order  that  there  might  be 
no  mistake,  however,  as  to  the  legal  bearing 
of  his  proofs,  he  submitted  them  to  an  English 
jurist  of  high  authority,  who  expressed  his 
opinion  that  the  laws  of  England  were  being 
violated.  Fortified  with  this  decision,  he  once 
more  visited  the  Foreign  Office  and  called  the 
facts  and  the  legal  opinion   directly   to   Lord 

*  By  an  extraordinary  coincidence  the  existing  United  States 
battle-ship  Alabama  was  the  290th  vessel  constructed  by  the 
Cramps  at  Philadelphia,  and  was  known  by  that  number  in  the 
yards.  Messrs.  Cramp  inform  the  writer  that  this  was  not  the 
result  of  design,  but  of  business  sequence.  Their  289th  vessel 
was  a  ferry-boat  called  Pittsburg,  the  290th  the  Alabama,  and 
the  291st  the  Japanese  cruiser  Kasagi. 

181 


DECISIVE   BATTLES  OF  THE  LAW 

Russell's  attention.  Representations  of  this  nat- 
ure, of  course,  could  not  well  be  disregarded 
by  the  government,  but  it  was  slow  to  act  upon 
them;  and  Captain  Bulloch,  receiving  inside  in- 
formation that  the  authorities  were  contem- 
plating the  seizure  of  his  vessel,  took  advantage 
of  the  delay  to  arrange  a  "trial  trip"  for  the 
Ennca,  which  proved  so  eminently  satisfactory 
that  she  never  returned  to  her  dock.  After  a 
short  stay  at  another  British  port  she  sailed  for 
the  Azores,  where  an  English  steamer  met  her 
with  her  arms  and  equipment,  and  with  an 
English  crew  she  sped  away  as  the  Alabama  to 
capture  and  destroy  all  the  unarmed  commercial 
marine  of  the  United  States  that  crossed  her 
path. 

Meanwhile,  Mr.  Adams  continued  to  exercise 
the  utmost  vigilance  in  England.  With  even 
temper,  exhaustless  patience,  and  faultless  phrase 
he  warned  the  Foreign  Office  of  the  Confederate 
plans,  and  unremittingly  supplied  unwelcome 
information  touching  the  infractions  of  English 
and  international  law,  studiously  disregarding 
official  discourtesies,  and  remaining  calm  under 
exasperating  hinderances  and  delays.  Qnce,  and 
once  only,  was  he  provoked  into  an  exhibition 
of  feeling,  but  when  it  became  probable  that  two 

182 


THE  ALABAMA   ARBITRATION 

iron-clad  rams  whose  character  and  purpose  he 
had  clearly  exposed  to  the  authorities  would 
soon  be  delivered  to  Captain  Bulloch  and  follow 
the  Alabama,  he  closed  his  review  of  the  facts 
with  the  significant  utterance,  ''It  would  he 
superfluous  for  me  to  point  out  to  your  Lordship 
that  this  is  war.''  Those  words  penned  by  a  man 
whose  reserve,  dignity,  and  patience  had  already 
impressed  Lord  Russell  startled  him  to  instant 
action,  and  the  outcome  of  the  war  being  no 
longer  in  doubt,  the  British  government  foimd 
no  difficulty  in  enforcing  the  law. 

Such,  in  brief,  was  the  history  of  the  events 
recorded  in  the  American  Case.  It  was  not 
this  statement,  however,  at  which  England  had 
taken  offence.  The  facts  were  substantially 
admitted,  but  the  claims  under  the  facts  were  in 
serious  dispute,  and  the  compHcations  which 
threatened  the  arbitration  with  disaster  did  not 
appear  in  the  formal  record. 

At  the  close  of  hostilities  it  had  become  Mr. 
Adams's  duty  to  call  attention  to  the  claims  of 
his  government  for  the  depredations  committed 
by  the  Alabama  and  many  other  vessels  wholly 
or  partially  equipped  in  England  or  sheltered 
in  British  ports,  but  his  presentation  of  this 
matter  at  once  met  with  a  cold  reception  at 

i8.s 


DECISIVE   BATTLES   OF  THE   LAW 

the  Foreign  Office.  Again  and  again  he  cour- 
teously invited  Lord  Russell's  consideration  of 
the  question  without  eliciting  any  satisfactory 
response,  and  finally  it  was  intimated  that  her 
Majesty's  ministers  did  not  desire  that  the 
matter  should  be  further  pressed  upon  their 
attention,  as  the  issues  raised  did  not  admit  of 
discussion.  With  courtly  phrase  the  expe- 
rienced diplomat  regretted  his  inability  to 
comply  with  their  Lordships'  suggestion,  or  to 
accept  the  conclusions  at  which  they  had 
arrived.  He  had  laid  the  foundations  of  his 
case  with  infinite  skill  and  could  well  afford  to 
wait,  but  he  had  no  intention  of  allowing  the 
issues  to  be  forgotten.  From  time  to  time, 
therefore,  he  renewed  his  representations,  ad- 
vising the  ministry  that  they  were  made  in  the 
most  amicable  spirit  and  that  there  was  no 
form  of  friendly  arbitration  or  adjustment  to 
which  the  United  States  would  not  willingly 
agree.  These  pacific  advances,  however,  met 
with  no  encouragement  from  the  British  gov- 
ernment. There  was,  in  the  opinion  of  official 
England,  nothing  to  arbitrate,  and  it  was  con- 
fidently believed  that  America  had  no  serious 
intention  of  insisting  upon  any  substantial 
settlement  of  the  matter  in  dispute. 

184 


THE  ALABAMA   ARBITRATION 

Meanwhile  public  opinion  in  the  United  States 
was  intensely  hostile  to  England,  and  nothing 
but  the  experience  of  a  long  and  bloody  war  kept 
the  popular  feeling  in  check.     Indeed,  there  had 
been  more  than  one  suggestion  at  the  close  of 
hostilities,  that,  with  a  veteran  army  of  more  than 
a  million  men  in  the  field  and  the  strongest  navy 
afloat,  the  time  was  ripe  to  enforce  recognition  of 
the  claims ;  but  better  counsels  had  prevailed  and 
the  whole  question  was  allowed  to  remain  in 
abeyance  awaiting  diplomatic  treatment.     Nev- 
ertheless, the  strained  relations  between  the  two 
countries  continued,  and  when  a  change  in  the 
British  ministry  occurred  and  it  became  evi- 
dent that  America  was  not  content  to  let  the 
matter  rest,  the  Johnson-Clarendon  treaty  was 
negotiated  and  submitted  to  the  Senate  at  Wash- 
ington.    When  it  was  discovered,  however,  that 
this  treaty  was  modelled  upon  the  old  Claims 
treaty  of   1853,   and  merely  provided   for  the 
reciprocal  submission  of  individual  claims  by 
citizens  of  each  country  against  the  other,  its 
fate  was  sealed.     In  a  speech  of  great  power 
Sumner  attacked  it  in  the  Senate,  denouncing 
It  as  wholly  incompatible  with  the  dignity  of  the 
United  States  and  utterly  ineffective  to  secure  a 
proper  reconciliation.    America  would  never  win 

185 


DECISIVE   BATTLES  OF  THE   LAW 

the  respect  of  England  or  of  any  other  nation, 
he  maintained,  by  accepting  such  a  disposition 
of  a  national  question.  The  treaty  merely  pro- 
vided for  the  adjustment  of  a  bundle  of  indi- 
vidual claims — the  real  issues  were  not  touched. 
There  was  not  a  word  in  the  entire  document 
which  recognized  any  duty  that  England  had 
owed  to  the  United  States  in  the  past,  or 
which  afforded  any  guarantee  for  the  future,  nor 
was  there  even  a  suggestion  of  regret  on  Eng- 
land's part  for  the  injuries  inflicted  upon  the 
United  States,  or  any  indication  as  to  who  the 
real  complainant  was.  No  such  treatment  of 
the  grave  questions  at  issue  would  be  tolerated 
in  America,  he  declared,  and  the  Senate  prompt- 
ly supported  his  view  by  rejecting  the  treaty  by 
an  overwhelming  vote,  only  one  member  being 
recorded  in  its  favor. 

This  emphatic  action  startled  and  irritated 
the  British  ministry  and  aroused  deep  resent- 
ment throughout  the  country.  The  mere  sug- 
gestion that  England  ought  to  apologize  for  her 
conduct  rendered  further  discussion  impossible 
in  the  opinion  of  most  Englishmen,  and  the  very 
idea  of  such  presumption  would  have  been 
laughed  at  had  it  not  been  so  annoying.  Amer- 
ica, it  was  felt,  had  been  pressing  the  considera- 

i86 


THE  ALABAMA   ARBITRATION 

tion  of  her  claims  for  years,  and  when  at  last 
England  had  consented  to  discuss  the  matter 
the  Senate  had  treated  the  concession  with  con- 
tempt. Natural  as  this  conclusion  was,  it  evi- 
denced a  complete  misunderstanding  of  the 
nature  of  America's  grievance,  and  for  this  the 
United  States  representatives  were  unquestiona- 
bly to  blame,  for  they  should  never  have  ap- 
proved a  treaty  so  entirely  inadequate  to  meet 
the  national  demands.  Still,  the  mischief  was 
done,  and  it  would  have  been  utterly  useless 
to  attempt  further  negotiations  in  the  existing 
state  of  public  opinion  on  both  sides  of  the 
Atlantic.  The  subject  was  therefore  allowed  to 
drop  until  187 1,  when  it  was  suddenly  brought 
to  a  head  by  as  skilful  a  move  as  was  ever  cred- 
ited to  a  department  of  state. 

In  a  message  to  Congress,  President  Grant 
reported  that  as  Great  Britain  did  not  appear 
willing  to  concede  that  the  United  States  had 
any  just  cause  of  complaint,  he  recommend- 
ed that  a  commission  be  appointed  to  take 
proof  of  the  private  claims  for  damages  suffered 
from  the  Alabama  or  other  vessels,  with  au- 
thority to  settle  the  same  by  purchase,  so  that 
the  United  States  might  own  and  control  all  svich 
demands  against  Great  Britain.     This  quiet  and 

187 


DECISIVE   BATTLES  OF  THE  LAW 

significant  manoeuvre,  coupled  with  the  fear 
that  the  Franco- Prussian  quarrel  might  draw 
England  into  war  and  render  her  own  views  of 
neutrality  highly  inconvenient,  almost  imme- 
diately resulted  in  unofficial  advances  from  the 
British  government,  whose  indifference  towards 
the  subject  in  dispute  gave  way  to  an  undis- 
guised anxiety  for  a  prompt  adjustment. 

The  preliminaries  of  this  second  negotiation 
were  conducted  with  great  prudence,  every  step 
being  carefully  considered,  both  sides  realizing 
that  another  failure  would  arouse  lasting  re- 
sentment and  embarrassment.  Private  un- 
ofiicial  conferences  finally  paved  the  way  for  the 
appointment  of  a  Joint  High  Commission  em- 
powered to  meet  at  Washington  and  negotiate 
a  treaty  for  the  settlement  of  all  differences ;  and 
when  the  distinguished  commissioners  agreed 
upon  a  treaty  providing  for  arbitration,  it  was 
confidently  supposed  that  all  the  troublesome 
questions  had  been  forever  laid  at  rest. 

Certainly  the  document  approved  by  the  Joint 
High  Commissioners  seemed  to  meet  all  the 
objections  which  had  been  so  forcibly  urged 
against  the  Johnson-Clarendon  treaty.  In  the 
first  place,  its  expressed  purpose  was  to  provide 
for  "the  amicable  adjustment  of  all  causes  of 

i88 


THE  ALABAMA   ARBITRATION 

difference  between  the  two  countries" — a  dis- 
tinct recognition  of  the  national  character  of  the 
dispute.  In  the  second  place,  it  specifically  re- 
ferred to  ''the  claims  of  the  United  States  gen- 
erally known  as  the  Alabama  claims,"  and  ex- 
pressed "  the  regret  felt  by  her  Majesty's  govern- 
ment for  the  escape,  under  whatever  circumstances, 
of  the  'Alabama'  and  other  vessels  from  British 
ports  and  for  the  depredations  committed  by  those 
vessels'' — a  most  acceptable  substitute  for  the 
''impossible"  apology.  Next  it  laid  down  cer- 
tain rules  or  principles  of  international  law  upon 
which  it  should  be  assumed  that  England  had 
undertaken  to  act  in  the  past,  and  which  both 
nations  agreed  to  observe  in  the  future,  and 
finally  it  provided  for  an  impartial  board  of 
arbitration  with  ample  powers  to  adjust  all  out- 
standing grievances.  In  a  word,  the  document 
was  a  complete  diplomatic  triumph  for  the 
United  States,  and  a  virtual  acknowledgment 
of  the  justice  of  the  issues  for  which  it  had  so 
long  contended. 

The  arbitration  clauses  in  particular  left  noth- 
ing to  be  desired.  Their  recitals  read  that  ''  in 
order  to  remove  all  complaints  and  claims  on  the 
part  of  the  United  States,  and  for  the  speedy 
settlement    of    such    claims,"    the    contracting 

189 


DECISIVE   BATTLES   OF  THE   LAW 

parties  agreed  that  all  said  claims  be  referred  to 
a  tribunal  of  arbitration  consisting  of  five  per- 
sons to  be  appointed  respectively  by  the  Presi- 
dent of  the  United  States,  the  Queen  of  England, 
the  King  of  Italy,  the  President  of  the  Swiss 
Confederation,  and  the  Emperor  of  Brazil,  who 
should  meet  at  Geneva  ''  to  examine  and  decide 
all  qiiestions  which  should  he  laid  before  them  by 
either  Great  Britain  or  the  United  States,"  and 
that  the  award  of  the  arbitrators  should  be  ac- 
cepted as  a  full,  perfect,  and  final  settlement  of 
all  claims,  whether  the  same  were  or  were  not  laid 
before  the  tribunal.  This  disposition  of  the  mat- 
ter naturally  met  with  the  hearty  approval  of  all 
Americans,  and  the  Senate  having  promptly 
ratified  the  treaty,  the  arbitrators  were  appoint- 
ed and  the  preparation  of  the  American  Case 
assigned  to  Mr.  J.  C.  Bancroft  Davis,  the  First 
Assistant  Secretary  of  State,  whose  thorough 
study  of  the  subject  eminently  qualified  him  for 
the  task. 

Mr.  Davis  had,  however,  no  sooner  exchanged 
his  formidable  treatise  for  the  British  Case 
prepared  by  the  English  agent.  Lord  Tenterden, 
than  the  London  press  began  a  furious  attack 
upon  the  nature  of  the  American  claims,  and  a 
storm  of  indignant  protest  immediately  followed. 

190 


THE  ALABAMA   ARBITRATION 

According  to  the  British  High  Commissioners, 
it  had  been  distinctly  understood  that  America 
had  waived  what  was  known  as  the  national  or 
indirect  claims  arising  out  of  the  prolongation  of 
the  war,  the  increased  payment  of  insurance,  the 
transfer  of  the  American  merchant  marine   to 
the  British  flag,  and  other  similar  causes;  yet  in 
the  face  of  this  understanding  the  American 
Case  called  all  these  matters  to  the  attention 
of  the  tribunal,  and  upon  them  based  an  enor- 
mous demand  for  damages.    The  American  rep- 
resentatives protested  that  they  had  not  waived, 
and  had  no  right  to  waive,  any  of  their  country's 
claims,  direct  or  indirect,  and  that  the  treaty 
itself  distinctly  provided  for  the  settlement  ''of 
all  differences"  by  arbitrators  authorized  "to 
examine  and  decide  all  questions  that  should 
be  laid  before  them  by  either  government."    It 
was,  however,  pointed  out  that  during  the  pre- 
liminary negotiations  the  indirect  claims  had 
been  fully  discussed,  with  the  result  that  the 
protocol  of  the  treaty  recited  that  the  United 
States  estimated  its  direct  claims  at  fourteen 
million  dollars,  and  "in  the  hope  of  an  amicable 
settlement"  made  no  estimate  of  the  indirect 
losses,    "without    prejudice,    however,    to    the 
right  to  indemnification  on  their  account  in  the 

191 


DECISIVE   BATTLES  OF  THE   LAW 

event  of  no  such  settlement  being  made."  The 
''amicable  settlement"  contemplated  in  this  re- 
cital had  been  effected,  according  to  the  British 
Commissioners,  by  the  agreement  to  arbitrate, 
and  the  United  States  had  therefore  no  right  to 
claim  damages  for  the  indirect  losses  or  to  sub- 
mit them  in  any  manner  to  the  Court. 

There  was  unquestionably  much  force  in  this 
contention,  and  in  view  of  the  contradictory 
language  of  the  treaty  and  the  disagreement  be- 
tween the  Joint  High  Commissioners  as  to  its 
meaning,  the  United  States  was  willing  to  leave 
the  whole  matter  to  the  arbitrators  and  let  them 
decide  what  was  and  what  was  not  properly  in 
suit.  The  English  newspapers,  nevertheless,  de- 
nounced the  whole  proceeding,  and,  charging 
bad  faith,  urged  the  government  to  repudiate 
the  arbitration  unless  the  United  States  with- 
drew the  objectionable  items.  In  other  words, 
one  of  the  litigants,  and  not  the  court,  was  to 
pronounce  judgment  on  part  of  its  adversary's 
case — or  there  would  be  no  trial!  Not  all  Eng- 
lish statesmen,  however,  endorsed  this  reckless 
programme.  Able  speakers  in  Parliament  called 
attention  to  the  fact  that  one  blunder  could  not 
be  cured  by  making  another.  If  the  British 
Commissioners  were  correct  in  their  contention 

IQ2 


THE  ALABAMA   ARBITRATION 

that  the  indirect  claims  had  been  waived,  they 
should  have  seen  to  it  that  they  were  expressly 
excluded  by  the  treaty,  instead  of  employing 
ambiguous  language  and  opening  the  way  for  a 
misunderstanding.    In  any  event,  England  could 
ill  afford  to  insist  upon  her  contentions  at  the 
expense  of  a  solemn  national  engagement.     Un- 
answerable as  such  arguments  were,  they  were 
disregarded,  and,  public  opinion  supporting  the 
government,  Lord  Tenterden  was  instructed  to 
file    England's    "counter   case"    under   protest 
and   to   intimate   that   his   government   would 
not  further  submit  to  the  jurisdiction  of  the 
Court.     At  this  juncture  negotiations  were  at- 
tempted   to    remove    the    difficulties,    but    the 
charges  which  had  been  made  were  of  such  a 
nature  that   very  little   progress   was   possible 
along    those    lines,    and    as    the    day    of    trial 
approached,  it   became  evident   that   England 
was   not   unwilling    to    have    the    arbitration 
fail. 

Such  was  the  situation  when  the  contending 
governments  faced  each  other  in  Geneva  on  that 
glorious  June  morning  in  the  year  1872,  and 
among  the  excluded  journalists,  anxiously  await- 
ing the  outcome,  opinion  was  divided  as  to 
whether  the  Salle  des  Conferences  was  about  to 

193 


DECISIVE   BATTLES  OF  THE   LAW 

witness  a  union  of  the  nations  or  an  interna- 
tional breach  of  promise. 

Meanwhile  all  the  parties  to  the  greatest  in- 
ternational lawsuit  in  history  were  assembled  in 
a  large,  high-ceilinged,  plainly  furnished  room, 
with  three  windows  looking  out  upon  the 
Botanical  Gardens.  Dark-red  curtains  hung  at 
the  windows,  and  the  rest  of  the  chamber  was 
decorated  in  harmony  with  the  draperies,  giving 
it  a  dull,  formal,  and  ceremonious  appearance, 
in  keeping  with  the  curved  judicial  bench  erect- 
ed on  a  low  platform  before  the  windows.  Fac- 
ing this  a  semicircle  of  official  desks  extended  to 
the  right  and  left  of  the  entrance  and  enclosed 
several  tables  covered  with  books  and  papers. 

At  the  centre  of  the  judicial  desk,  with  his 
back  to  the  windows,  sat  a  tall,  stout  man  with 
short  side-whiskers,  a  bald  head,  and  a  round, 
pleasant  face.  Although  evidently  well  ad- 
vanced in  age,  he  carried  his  years  with  an  un- 
mistakable air  of  distinction,  and  his  clear  eyes 
and  alert  bearing  bespoke  a  man  in  his  intel- 
lectual prime.  This  was  Count  Frederic  Sclopis, 
the  arbitrator  appointed  by  the  King  of  Italy 
and  unanimously  chosen  president  of  the  tribu- 
nal, not  merely  by  reason  of  his  seniority,  but  in 
recognition  of  his  unquestioned  attainments  as 

194 


THE  ALABAMA   ARBITRATION 

a  jurist,  he  being  the  author  of  one  of  the  most 
famous  legal  treatises  in  Italy. 

Immediately  to  his  left  sat  the  short,  stoop- 
shouldered,  studious-looking  Brazilian  ambas- 
sador to  France,  Baron  dTtajuba,  a  diplomat 
of  forty  years'  experience,  nominated  by  the 
Emperor  of  Brazil.  On  the  other  side  of  the 
president  sat  the  youngest  of  the  arbitrators, 
Jacob  Staempfli,  a  self-made  man  of  strong  in- 
dividuality and  marked  ability,  whose  original 
training  had  been  in  the  law,  but  who  had  held 
almost  every  important  position  under  the  Swiss 
government,  including  the  Presidency,  to  which 
he  had  more  than  once  been  called.  Of  all  the 
arbitrators,  with  the  exception  of  Mr.  Adams, 
this  serious-minded  statesman  was  unquestion- 
ably the  most  thoroughly  prepared,  for  he  had 
retired  to  his  country-seat  with  all  the  official 
documents  months  before  the  tribunal  met  and 
conscientiously  devoted  himself  to  the  case  until 
he  had  completely  mastered  it  in  every  detail. 
There  was,  however,  nothing  distinguished  in 
his  personality,  and  his  heavy,  stolid,  Teutonic 
face  contrasted  unfavorably  with  the  clean-cut, 
handsome  features  of  England's  representative. 

Sir  Alexander  Cockburn,  Lord  Chief -Justice 
of  England,  the  arbitrator  nominated  by  the 
14  19s 


DECISIVE  BATTLES  OF  THE  LAW 

Queen,  was  in  point  of  scholarship  and  ex- 
perience eminently  qualified  for  the  important 
duty  to  which  he  had  been  assigned,  but  his 
florid  face  and  aggressively  superior  manner 
indicated  a  temper  and  a  temperament  ill  adapt- 
ed to  diplomatic  success.  Affable  and  cour- 
teous enough  when  nothing  was  at  stake,  he  was 
utterly  unable  to  bear  opposition,  and  criticism 
fairly  enraged  him.  Moreover,  he  unfortunately 
chose  to  regard  himself  as  England's  chief  de- 
fender rather  than  as  her  chief  jurist,  and  having 
come  to  Geneva  convinced  that  America  was 
seeking  an  undue  advantage  from  the  treaty,  he 
had  no  inclination  to  exert  himself  in  saving  the 
situation.  In  fact,  he  had  already  determined 
on  a  course  which  was  well  calculated  to  bring 
the  proceedings  to  a  speedy  close;  but  in  per- 
mitting himself  to  believe  that  this  result  was 
inevitable,  he  under-estimated  the  skill  and  re- 
sourcefulness of  his  adversaries,  who  had  every 
reason  for  wishing  the  arbitration  to  proceed. 
They  knew  that  the  treaty  by  which  it  had  been 
authorized  had  placed  the  United  States  in  the 
position  of  plaintiff  and  forced  England  into  the 
role  of  an  apologetic  defendant,  and  that  the 
principles  of  international  law  admitted  and 
guaranteed  were  of  the  first  importance,  and 

196 


THE  ALABAMA  ARBITRATION 

that  every  detail  of  the  case  had  been  carefully 
prepared.  No  one  appreciated  the  strategic 
value  of  these  points  better  than  the  American 
arbitrator,  Charles  Francis  Adams,  and  of  all 
those  gathered  at  the  scene  of  action  he  had  the 
deepest  personal  interest  in  the  result.  This 
was  the  moment  for  which  he  had  anxiously 
waited  and  for  which  he  had  prepared  himself 
year  after  year,  and  he  determined  not  only  that 
America  should  retain  every  advantage  she  had 
gained,  but  that  England  should  be  left  no  loop- 
hole of  escape. 

No  abler  representative  than  Mr.  Adams  could 
possibly  have  been  selected  for  the  work  at  hand, 
and  his  temperament  was  exactly  suited  to  the 
dual  role  of  judge  and  advocate  which  his  duties 
forced  upon  him.  A  less  accomplished  French 
scholar  than  Sir  Alexander  Cockbum,  he  was 
far  more  cosmopolitan  and  broad-minded,  and 
among  cultivated  men  his  attractive  personality 
and  intellectual  tastes  gave  him  a  distinct  ad- 
vantage over  the  irascible  Chief -Justice.  In- 
deed, England  and  America  were  perfectly  per- 
sonified by  their  respective  arbitrators.  Both 
were  keen,  experienced  lawyers,  mentally  well 
matched,  and  equally  good  fighters;  but  the 
moment  they  were  pitted  against  each  other 

197 


DECISIVE   BATTLES  OF  THE   LAW 

the   national    characteristics    were   strongly   in 
evidence. 

At  the  semicircle  of  desks  before  the  judicial 
bench  sat  the  counsel — William  M.  Evarts's  thin, 
sharp,  New  England  face  contrasting  strangely 
with  Sir  Roundell  Palmer's  clerical  countenance. 
Beside  Mr.  Evarts — then  at  the  height  of  his 
remarkable  professional  career  —  sat  Morrison 
Waite,  later  Chief -Justice  of  the  United  States, 
and  near  them  were  General  Caleb  Cushing  and 
Mr.  Charles  C.  Beaman,  Jr.,  whose  special  study 
of  the  case  at  bar  had  made  them  expert  ad- 
visers for  the  United  States.  Indeed,  General 
Cushing  was  in  age,  diplomatic  experience,  and 
knowledge  of  the  State  Department's  business 
the  senior  counsel  for  America,  and  fairly  main- 
tained that  position  by  his  active  participation 
in  the  proceedings.  At  the  other  desks  sat 
Professor  Mountague  Bernard  of  counsel  for 
England,  J.  C.  Bancroft  Davis  and  Lord  Ten- 
terden,  the  official  agents  for  the  respective 
governments,  and  the  remaining  places  were 
occupied  by  the  private  secretaries  and  trans- 
lators— all  young  men  of  legal  or  diplomatic 
training.* 

*  The  American  secretaries  were  Messrs.  Brooks  Adams,  John 
Davis,   Frank  W.    Hackett,   W.  F.   Pendrick,  and   Edward  T. 

198 


THE  ALABAMA   ARBITRATION 

Such  was  the  company  which  Count  Sclopis 
called  to  order  at  noon  on  June  15,  1872,  and  a 
more  attentive  audience  probably  never  greeted 
a  presiding  officer,  for  the  fate  of  the  treaty 
trembled  in  the  balance  as  the  American  agent 
rose,  and,  claiming  the  attention  of  the  chair, 
filed  the  printed  argument  required  by  the  rules. 
The  die  was  then  cast,  for  with  that  act  America 
had  complied  with  the  last  formality  and  stood 
prepared  for  action.  What  response  would 
England  make  to  the  challenge?  The  question 
was  quickly  answered,  for  Lord  Tenterden  im- 
mediately rose  and  moved  that  the  tribunal  ad- 
journ for  eight  months — a  proposition  equivalent 
to  adjourning  sine  die  and  ending  the  arbitration 
then  and  there.  This  emergency,  however,  had 
been  thoroughly  discussed  by  the  American 
representatives,  and  recognizing  that  England 
had  determined  to  block  the  proceedings,  they 
stood  prepared  to  force  her  hand.  Acting  by 
prearrangement  with  his  associates,  Mr.  Davis 
opposed  the  English  agent's  motion,  and  sug- 
gested as  an  alternative  an  adjournment  for  two 
days  only.     This  counter-proposition  was  quick- 

Waite:  Great  Britain's  secretaries  were  Messrs.  Sanderson, 
Markheim,  Villiers,  Langly,  and  Hamilton.  The  secretary  of 
the  Arbitration  was  Monsieur  Alex.  Favrot. 

199 


DECISIVE   BATTLES  OF  THE   LAW 

ly  accepted,  and  within  an  hour  of  their  arrival 
all  the  officials  were  on  their  way  from  the  Hotel 
de  Ville,  pursued  by  the  representatives  of  the 
press,  who  in  default  of  other  information  ad- 
vised their  journals  that  the  officials  had  dis- 
persed and  that  the  fate  of  the  arbitration  was 
sealed. 

No  such  fiasco,  however,  was  contemplated  by 
the  American  representative.  Calling  the  other 
arbitrators  together  informally,  he  outlined  a 
proposition  that  they  should  deliver  an  extra- 
judicial opinion  that  the  national  or  indirect 
claims  afforded  no  proper  basis  for  an  award  by 
the  tribunal,  he  himself  offering  to  vote  in  favor 
of  their  rejection.  No  more  skilful  move  than 
this  was  ever  recorded  in  diplomatic  history, 
for  without  necessitating  any  withdrawal  of 
America's  claims,  it  forced  England  to  accept  a 
judicial  disposition  of  them,  which  was  what  she 
had  positively  declined  to  do.  Moreover,  it 
demonstrated  that  America  was  seeking  no  un- 
due advantage  from  the  wording  of  the  treaty, 
and  was  ready  to  bow  to  the  authority  of  the 
tribunal,  only  asking  that  the  decision  be  that 
of  the  court  to  which  she  had  submitted  her 
rights,  and  not  that  of  her  adversary.  Had 
England  voluntarily  adopted  this  course,   she 

200 


THE  ALABAMA   ARBITRATION 

might  and  probably  would  have  succeeded  in 
having  the  disputed  claims  rejected  and  thereby- 
gained  a  notable  victory.  Instead  of  this,  she 
was  placed  in  the  unenviable  position  of  having 
threatened  the  violation  of  an  international 
agreement  because  her  demands  were  not  com- 
plied with,  thereby  exhibiting  not  only  disregard 
of  her  national  obligations,  but  also  lack  of  con- 
fidence in  the  Court  before  which  the  other  issues 
in  her  case  were  to  be  heard — an  error  which 
she  never  retrieved  during  the  subsequent  pro- 
ceedings. Although  a  judicial  disposition  of 
the  claims  was  not  to  their  liking,  Sir  Alexander 
Cockbum,  Lord  Tenterden,  and  their  counsel 
had  no  choice  but  to  accept  the  situation,  and 
a  document  was  immediately  drawn  embody- 
ing Mr.  Adams's  proposal,  which,  after  revision 
by  the  lawyers,  was  published  as  the  individual 
and  collective  judgment  of  the  Court,  and  the 
government  at  Washington  having  promptly 
ratified  it,  England  was  left  without  excuse  for 
withdrawing  from  or  further  delaying  the  trial 
of  the  real  points  at  issue. 

This  unexpected  turn  of  affairs  placed  Sir 
Alexander  Cockbum  in  a  most  embarrassing 
position.  So  sure  had  he  been  that  the  arbitra- 
tion would  prove  abortive  that  he  had  come  to 

201 


DECISIVE   BATTLES  OF  THE  LAW 

Geneva  wholly  unprepared  for  any  lengthy  so- 
journ and  almost  entirely  ignorant  of  the  merits 
of  his  case,  and  when  the  sessions  were  resumed 
on  the  morning  of  June  29th,  he  speedily  found 
himself  at  a  disadvantage.  Annoying  as  this 
predicament  would  have  been  to  any  man,  it 
was  especially  irritating  to  one  of  Cockbum's 
temperament,  but  the  hearings  could  not  be 
postponed  to  enable  him  to  study  the  case,  and 
plunging  into  the  sea  of  details,  he  soon  found 
himself  beyond  his  depth,  and  began  striking 
out  right  and  left  in  a  wild  effort  to  keep  his  head 
above  water. 

By  mutual  agreement  it  had  been  determined 
to  consider  the  evidence  touching  each  vessel 
complained  of  in  the  American  documents  sep- 
arately, and  to  reach  a  conclusion  as  to  Eng- 
land's liability,  reserving  the  question  of  damages 
for  later  discussion.  Under  this  method  of  pro- 
cedure the  history  of  the  Oreto,  otherwise  known 
as  the  Florida,  was  the  first  to  occupy  the  atten- 
tion of  the  Court,  and  difficult  questions  of  law 
were  immediately  raised  which  required  clear 
analysis  and  careful  deliberation.  Sir  Alexander 
did  not,  however,  attempt  to  reason  with  his 
associates  or  persuade  them  to  his  point  of  view. 
With  the  voice  of  authority  he  endeavored  to 

202 


THE  ALABAMA   ARBITRATION 

force  his  conclusions  upon  them,  and  his  dis- 
courteous contradictions  and  ill-disguised  con- 
tempt of  ''  foreign  "  opinion  were  wofully  lacking 
in  good  taste.  Through  long  service  in  a  court 
where  his  word  was  law  he  had  become  in- 
tolerant of  the  opinions  of  others,  and  utterly 
unable  to  adapt  his  conduct  to  the  exigencies 
of  the  moment.  Indeed,  the  hearings  had  not 
proceeded  far  before  he  attempted  to  ride  rough- 
shod over  the  very  man  whose  conscientious  and 
unprejudiced  study  of  the  case  entitled  him  to  the 
highest  possible  consideration.  Mr.  Staempfii, 
however,  was  not  a  man  whom  it  would  have 
been  possible  to  browbeat  with  impunity  under 
any  circumstances,  and  his  piercing  dark  eyes 
instantly  responded  in  unmistakable  challenge 
to  Cockbum's  first  domineering  utterance.  From 
that  moment  the  two  men  were  in  almost  con- 
stant collision,  and  though  the  forms  of  courtesy 
were  observed,  nearly  every  interchange  be- 
tween them  threatened  a  serious  outbreak.  The 
mere  idea  of  the  representative  of  an  inland 
state  having  any  notions  on  maritime  law  was 
absurdly  preposterous  to  the  Chief -Justice's 
thinking,  and  he  made  no  secret  of  his  views  in 
this  regard.  Had  he,  however,  possessed  even 
moderate  tact,  Sir  Alexander  could  not  have 

203 


DECISIVE   BATTLES  OF  THE   LAW 

failed  to  perceive  that  his  overbearing  conduct 
was  not  only  making  an  open  enemy  of  one  of 
the  non-partisan  arbitrators,  but  was  seriously 
prejudicing  the  other  two,  for  Mr.  Staempfli  had 
prepared  careful  opinions  upon  all  the  main 
issues  of  the  case,  and  his  thorough  familiarity 
with  the  subject  had  impressed  his  colleagues 
and  won  their  respect.  Count  Sclopis  and 
Baron  d'ltajuba  were  mild-mannered  men  of 
great  personal  dignity  to  whom  bullying  was 
intolerable,  and  they  noted  the  Englishman's 
treatment  of  the  Swiss  arbitrator  with  astonish- 
ment and  marked  disapproval.  But  Cockbum 
was  either  ignorant  or  careless  of  the  prejudice 
he  was  creatmg,  and  day  after  day  he  blundered 
along,  trampling  upon  opinions,  offending  sensi- 
bilities, making  every  question  a  personal  issue, 
and  generally  misconducting  himself  until  he 
had  estranged  or  offended  every  one  of  his 
associates,  and  not  a  session  passed  without 
witnessing  something  very  like  a  quarrel. 

Mr.  Adams,  on  the  other  hand,  adopted  an 
entirely  different  course.  Recognizing  that  the 
success  of  his  cause  depended  upon  the  repre- 
sentatives of  Italy,  Brazil,  and  Switzerland,  he 
gave  careful  consideration  to  their  opinions, 
welcomed  their  suggestions,  answered  their  ques- 

204 


THE  ALABAMA   ARBITRATION 

tions,  and  avoided  controversy  as  far  as  possible. 
To  the  English  Arbitrator  he  was  invariably 
courteous,  never  displaying  the  slightest  irrita- 
tion, but  never  failing  to  respond  effectively  to 
his  attacks  with  facts  and  figures  which  demon- 
strated a  convincing  familiarity  with  the  sub- 
ject and  influenced  the  judgment  of  the  Court. 
Indeed,  it  was  not  long  before  the  American 
diplom.at  became  the  controlling  force  in  the 
arbitration,  and  the  discovery  of  this  fact  did  not 
serve  to  soothe  Sir  Alexander  Cockburn's  tem- 
per. Moreover,  the  cause  was  going  decidedly 
against  him,  for  in  considering  the  record  of  the 
Florida  the  majority  opinion  had  been  adverse 
to  England's  interests. 

These  reverses  and  the  hot  weather  combined 
to  exasperate  the  Chief -Justice,  and  his  en- 
counters with  his  associates  became  more  and 
more  frequent  as  the  case  proceeded.  Every 
day  witnessed  sharp  exchanges  between  him 
and  Mr.  Staempfli,  and  with  Mr.  Adams  he 
kept  up  a  running  fight  in  which  his  increasing 
irritability  often  assumed  the  form  of  down- 
right affront. 

Finally  it  was  decided  that  the  legal  cham- 
pions should  have  a  field-day,  and  Sir  Roundell 
Palmer  delivered  a  speech  of  considerable  pro- 

205 


DECISIVE   BATTLES  OF  THE   LAW 

fundity  upon  the  law  of  the  case.  Unfor- 
tunately for  him,  however,  it  was  his  advice  that 
had  governed  the  action  or  inaction  of  the 
Foreign  Office  during  the  Civil  War,  and  as  the 
main  question  before  the  tribunal  was  the 
soundness  of  that  advice,  he  was  at  a  disad- 
vantage with  his  audience  which  it  was  difficult 
for  him  to  overcome. 

Mr.  Evarts  followed  with  an  argument  of 
great  power,  which  was  repeatedly  interrupted 
by  impatient  and  sometimes  scoffing  questions 
from  the  Chief -Justice.  But  here  again  Sir 
Alexander  damaged  his  cause,  for  although  his 
knowledge  of  the  laws  of  England  was  au- 
thoritative, and  his  extensive  information  con- 
cerning American  diplomatic  precedents  might 
have  been  utilized  most  effectively,  he  displayed 
such  bad  judgment  in  handling  his  material  that 
the  opportunity  was  lost.  Moreover,  the  able 
advocate  whom  he  undertook  to  bait  had  made 
an  exhaustive  study  of  the  case,  and  his  answers 
were  so  cool  and  at  times  so  sharp  that  the  ques- 
tioner was  frequently  left  disconcerted. 

Mr.  Evarts's  argument  was  delivered  in  Eng- 
lish, but  General  Caleb  Cushing  was  a  French 
scholar  of  considerable  proficiency,  and  his  ad- 
dress, which  was  a  masterpiece  of  tact,  illus- 

206 


THE  ALABAMA   ARBITRATION 

trated  the  difference  between  the  EngHsh  and  the 
American  attack.  Sir  Roundell  Palmer  had 
instructed  his  hearers  upon  EngHsh  law  with  a 
scholarship  which  left  little  to  be  desired.  But 
however  satisfactory  his  discourse  may  have 
been  to  the  English  i\rbitrator,  who  needed  no 
persuasion,  there  is  every  indication  that  it 
failed  to  convince  or  even  to  interest  the  rep- 
resentatives of  Brazil,  Switzerland,  and  Italy. 
Mr.  Ctishing  proceeded  on  entirely  different  lines. 
Without  attempting  any  technical  discussion  he 
immediately  entered  upon  a  broad  review  of 
international  duties,  calling  attention  to  the 
Italian  laws,  with  which  he  showed  a  familiarity 
as  agreeable  as  it  was  interesting  to  the  venera- 
ble President  Coimt  Sclopis.  Next  he  com- 
mented upon  and  commended  the  Brazilian  laws, 
demonstrating  that  they  recognized  the  prin- 
ciples of  international  comity  for  which  America 
was  contending;  and  then  taking  up  the  Swiss 
laws,  he  showed  how  her  statesmen  had  ob- 
served and  enforced  neutrality  under  geo- 
graphical and  political  surroundings  of  peculiar 
difficulty.  A  less  skilful  speaker  might  have 
injured  his  cause  by  an  ad  hominem  argument 
of  this  character,  but  the  entire  address  was  so 
gracefully  and  artlessly  delivered  that  its  strat- 

207 


DECISIVE   BATTLES  OF  THE   LAW 

egy  was  never  offensive  and  its  appeal  was  far 
from  lost.  The  very  tactfulness  of  such  an 
approach,  however,  fretted  Sir  Alexander,  and 
his  antipathy  for  the  speaker,  which  had  been 
smouldering  throughout  the  sessions,  flared  into 
open  hostility  before  the  arbitrators  went  into 
secret  session  to  consider  their  award. 

Up  to  this  time  not  one  word  of  news  had  been 
obtained  by  the  indefatigable  journalists  who 
daily  thronged  the  Hotel  de  Ville,  and  it  is 
probable  that  never  before  had  the  secrets  of 
a  great  international  litigation  been  so  strictly 
kept.  Not  even  a  rumor  of  the  bitter  personal 
struggle  that  had  been  fought  behind  the  closed 
doors  for  over  two  months  had  found  its  way 
into  print,  and  although  the  relations  between 
the  English  Arbitrator  and  the  other  officials  had 
become  so  strained  that  they  virtually  never  met 
except  officially,  no  hint  of  this  condition  of  af- 
fairs had  publicly  appeared  when  the  arbitrators 
met  on  September  14th,  to  publish  their  award. 

This  time  the  Salle  des  Conferences  was  crowd- 
ed with  guests,  for  the  Geneva  Conseil  d'Etat 
had  been  invited  to  witness  the  ceremony,  and 
the  members  of  that  body,  dressed  in  official 
black,  were  assigned  positions  behind  the  ju- 
dicial desk. 

208 


THE  ALABAMA   ARBITRATION 

At  the  centre  tables  sat  the  counsel  and  the 
agents,  and  the  desks  about  them  were  occu- 
pied by  ladies  related  to  the  various  officials, 
while  behind  them  were  grouped  the  young 
secretaries  and  translators.  At  noon  Count 
Sclopis  assumed  the  president's  chair,  and  with 
him  appeared  Mr.  Adams,  Mr.  Staempfli,  and 
Baron  d'ltajuba,  but  the  place  on  the  president's 
extreme  left,  usually  occupied  by  Sir  Alexander 
Cockbum,  was  vacant,  and  minute  after  minute 
slipped  by  without  witnessing  his  appearance. 
Finally  at  the  end  of  nearly  an  hour's  waiting 
he  arrived,  and  Count  Sclopis  proceeded  to  an- 
nounce the  award,  which  was  in  many  respects  a 
complete  surprise. 

England  was  held  responsible  for  all  the 
depredations  of  the  Florida,  the  Alabama,  and 
their  tenders  or  auxiliaries,  and  for  some  of  the 
injuries  caused  by  the  Shenandoah,  and  fifteen 
million  five  hundred  thousand  dollars  was  award- 
ed the  United  States.  With  an  admirable  dis- 
play of  fairness,  however,  and  in  a  strictly 
judicial  spirit,  Mr.  Adams  had  decided  against 
the  contentions  of  his  own  country  in  the  cases 
of  the  Georgia,  the  Sumter,  the  Nashville,  the 
SalliCy  the  Tallahassee,  the  Chickamauga,  the 
MusiCy  the  Jefferson  Davis,  the  Boston,  and  the 

209 


DECISIVE   BATTLES  OF  THE  LAW 

Joy,  voting  only  against  England  in  the  cases 
of  the  Alabama,  the  Florida,  the  Retrihution, 
and  the  Shc7iandoah. 

Sir  Alexander  Cockburn,  on  the  other  hand, 
had  voted  against  the  United  vStates  and  in 
favor  of  England  in  every  instance  except  the 
Alabama,  and  then  only  for  reasons  of  his  own, 
with  which  the  rest  of  his  associates  disagreed. 
Moreover,  he  refused  to  sign  the  award  at  all, 
and  the  moment  Count  Sclopis  finished  reading 
it  he  rose,  picked  up  his  hat,  and  to  the  intense 
astonishment  of  the  assembled  company,  march- 
ed out  of  the  room  without  even  a  word  of  fare- 
well to  the  men  with  whom  he  had  been  daily 
associated  for  more  than  two  months. 

This  extraordinary  discourtesy  was  not,  how- 
ever, the  climax  of  the  Chief  Justice's  indiscre- 
tions. In  a  dissenting  opinion  of  one  hundred 
and  eighty  pages  he  attacked  the  findings  of  the 
tribunal  in  an  utterly  unjudicial  spirit  and  with 
a  confusion  of  ideas  and  disregard  of  logic  un- 
worthy of  his  talents.  In  fact,  like  the  Scotch 
advocate  who  had  lost  the  thread  of  his  argu- 
ment, 

"He  gaped  for't — he  groped  for't — 
He  found  it  was  awa',  mon, 
But  when  his  common-sense  fell  short 
He  eked  it  out  wi'  law,  mon." 

2IO 


THE  ALABAMA   ARBITRATION 

The  best  English  opinion  sincerely  deprecated 
this  futile  and  ill-advised  performance,  and 
public  opinion  found  nothing  in  the  award  to 
provoke  anger  or  criticism.  The  decision,  it  is 
true,  marked  a  diplomatic  and  legal  triumph 
for  the  United  States  which  had  never  been 
equalled  and  has  never  been  surpassed,  but 
Englishmen  saw  that  the  principles  of  neutrality 
which  had  been  established  inured  to  the  benefit 
of  both  parties,  and  that  international  arbitra- 
tion had  been  magnificently  vindicated  by  the 
satisfactory  solution  of  a  problem  of  unparalleled 
difficulty.  Indeed,  the  result  was  accepted  by 
England  without  resentment  and  with  little  or 
no  regret,  and  had  her  arbitrator  recognized 
the  human  elements  in  his  cause,  and  striven 
to  do  justice  rather  than  battle  for  his  country, 
it  is  more  than  probable  that  a  far  more  favorable 
result  would  have  been  her  portion. 

IS 


VII 

THE    HAYES-TILDEN    CONTEST  I 
A    POLITICAL   ARBITRATION 

THE  old  Senate  -  chamber  in  the  national 
Capitol  was  the  political  battle-ground  of 
the  issues  which  presaged  the  Civil  War.  With- 
in its  walls  Webster  and  Hayne  voiced  the  pre- 
liminary challenge  and  defiance  of  the  coming 
conflict ;  to  its  audience  Douglas  first  addressed 
his  arguments  for  ''popular  sovereignty";  be- 
hind its  doors  the  vote  which  repealed  the 
Missouri  Compromise  was  recorded;  under  its 
roof  the  Kansas  conspiracy  found  shelter  and 
encouragement;  upon  its  floor  Sumner  fell  un- 
der the  murderous  attack  of  Brooks;  across  its 
desks  flew  the  goading  insults  of  the  Free-State 
men  and  the  furious  threats  of  their  opponents ; 
directly  beneath  it,  in  the  room  now  occupied 
as  the  law  library,  the  Supreme  Court  announced 
its  decision  in  the  Dred  Scott  case,  and  shortly 
afterwards  the  Senate  surrendered  possession  of 


THE   HAYES-TILDEN   CONTEST 

the  Chamber,  permeated  with  the  contagion  of 
party  strife,  to  that  august  tribunal.  But 
though  the  conflict  immediately  shifted  to  the 
new  legislative  hall,  where  all  the  vicious  sav- 
ageries of  the  war  were  soon  reflected  in  the 
virtuous  excess  of  Reconstruction,  it  was  des- 
tined again  to  invade  the  scene  of  its  origin. 
Within  its  walls  the  Electoral  Commission  as- 
sembled in  February,  1877. 

To  those  who  recalled  the  partisan  inheritance 
of  the  room,  its  selection  as  the  meeting-place  of 
jurists  charged  with  the  settlement  of  a  vital 
political  question  was  ominous  of  disaster,  but 
in  other  respects  no  court  ever  convened  under 
more  favorable  auspices  than  those  which  greet- 
ed the  extraordinary  bench  to  which  the  Hayes- 
Tilden  controversy  was  finally  submitted.  In- 
voked as  "  a  tribunal  whose  authority  none  could 
question  and  whose  decision  all  would  accept," 
it  had  come  into  being  dowered  with  the  confi- 
dence of  the  public  and  armed  with  a  mandate 
to  save  the  people  from  themselves. 

Certainly  it  was  high  time  that  some  one  or 
something  intervened  to  avert  the  unspeakable 
calamities  which  threatened  the  nation,  for 
the  Presidential  election  of  the  preceding  fall 
had  Hterally  torn  the  country  to  pieces.    Under 

213 


DECISIVE   BATTLES   OF  THE   LAW 

the  leadership  of  Tilden,  the  Democrats  had 
prepared  and  prosecuted  a  terrific  indictment 
against  the  corruption  and  misgovernment  of 
the  administration,  and  as  a  result  they  had 
secured  an  impressive  popular  majority  for  their 
candidate,  and  no  less  than  184  electoral  votes, 
only  one  less  than  the  number  required  for  his 
choice.  Hayes  had  concededly  received  166 
votes,  and  nineteen  representing  South  Carolina, 
Florida,  and  Louisiana  were  in  dispute.  To  the 
impartial  observer  it  seemed  impossible  that 
those  Democratic  strongholds  should  not  yield 
at  least  one  vote  for  Tilden ;  but  to  the  Repub- 
lican politicians,  whose  henchmen  controlled  the 
canvassing  boards,  that  result  appeared  not  only 
possible,  but  probable,  and  the  outcome  of  the 
local  contests  that  ensued  fully  justified  their 
confidence. 

The  story  of  those  contests  was  substantially 
the  same  in  each  State,  and  all  were  equally 
humiliating  to  civic  pride.  The  Democratic 
majorities  on  the  face  of  the  returns  were  elimi- 
nated by  the  canvassing  boards  on  charges  of 
negro  intimidation  irregularly  presented  and  in- 
sufficiently proved;  protests  were  ignored  and 
perjuries  condoned.  The  policy  of  Reconstruc- 
tion which  had  forced  cori*upt  government  and 

214 


THE   HAYES-TILDEN  CONTEST 

negro  suffrage  upon  the  South  and  driven  it  to 
physical  outrage  had  now  to  be  sustained  by 
legal  outrage,  even  more  demoralizing  than  the 
terrorism  it  had  evoked. 

Not  one  redeeming  episode  marked  all  this 
sorry  business.  To  the  tricks,  perjuries,  and 
gross  partisanship  of  the  Republicans,  the  Demo- 
crats responded  with  counter- tricks,  counter- 
perjuries,  and  bungling  negotiations  to  bribe 
corrupt  officials,  and  when  each  side  had  ob- 
tained certificates  supporting  the  claims  of  its 
candidates  and  forwarded  them  to  Washington, 
they  presented  only  a  shameful  choice. 

With  their  control  of  the  election  machinery, 
however,  the  Republicans  had  a  tactical  advan- 
tage in  that  their  certificates  were  issued  by 
recognized  officials,  while  the  Democratic  docu- 
ments were  less  regular  upon  their  face.  Never- 
theless, in  the  case  of  Florida  the  certificate  of 
the  Tilden  electors  had  been  passed  upon  and 
approved  by  the  highest  courts  of  that  State, 
and  the  notorious  fact  that  a  Democratic  ma- 
jority of  not  less  than  six  thousand  had  been 
suppressed  in  Louisiana  invited  close  scrutiny 
of  the  Republican  credentials,  and  entitled  the 
opposition  to  the  benefit  of  every  doubt. 

Who  was  to  decide  between  these  conflicting 
215 


DECISIVE   BATTLES  OF  THE   LAW 

returns?  That  question  had  been  frequently 
raised,  but  the  Constitution  afforded  no  definite 
answer,  and  as  no  election  had  previously  de- 
pended upon  the  vote  of  a  State  claimed  by 
both  parties,  the  issue  had  been  avoided  by 
temporary  expedients.  Now,  however,  it  was 
sharply  presented,  and  there  was  absolutely  no 
precedent  governing  the  situation.  The  Con- 
stitution merely  provided  that  on  a  certain  day 
the  President  of  the  Senate  should  open  the 
returns  in  the  presence  of  both  Houses,  and 
the  vote  should  then  be  counted.  But  here 
was  a  case  where  there  were  returns  to  be 
rejected  as  well  as  counted.  With  whom  lay 
the  power  to  discriminate  between  them  ?  The 
Republican  Senators  gravely  answered  that  it 
was  the  duty  of  the  President  of  their  Chamber, 
who  was  authorized  not  only  to  open  and  count 
the  returns,  but  to  pass  upon  their  validity. 
In  other  words,  they  claimed  that  the  Constitu- 
tion intrusted  this  vitally  important  matter 
entirely  to  the  discretion  of  one  man,  and  that 
the  assembled  House  and  Senate  were  merely 
authorized  to  be  present  as  spectators  of  his  act. 
This,  it  was  true,  had  never  been  done  in  the 
history  of  the  republic,  and  the  Democratic 
majority  in  the  House  angrily  asserted  that  it 

216 


THE   HAYES-TILDEN   CONTEST 

never  should  be  done.  Moreover,  they  posi- 
tively declared  that  no  electoral  vote  whatso- 
ever could  or  should  be  counted  without  the 
concurrent  action  of  both  branches  of  Congress. 
If  neither  candidate  received  a  majority  of  the 
votes,  then  it  was  contended  that  the  whole 
matter  was  relegated  to  the  House  of  Repre- 
sentatives, which  was  authorized  to  elect  a 
President,  and  that  body  plainly  intimated  its 
entire  readiness  to  assume  the  responsibility. 

Unless  these  divergent  claims  could  be  recon- 
ciled the  result  was  only  too  apparent — Tilden 
would  be  declared  President  by  the  Democratic 
House,  and  Hayes  by  the  Republican  Senate; 
each  would  set  up  his  own  government,  and  no 
one  could  predict  what  the  outcome  would  be. 
Already  throughout  the  country  there  were 
mutterings  of  the  storm  which  threatened  to 
rend  the  nation.  Incited  by  the  appeals  of 
irresponsible  demagogues,  bands  of  minute-men 
were  enrolled,  sworn  to  seat  the  Democratic 
candidate  peaceably  if  possible,  but  by  force  if 
necessary;  offers  of  arms  and  men  were  made 
to  the  party  leaders,  taunts  and  defiances  flew 
in  every  direction,  and  very  little  was  wanting 
to  precipitate  a  national  disaster.  In  the  face 
of  this  monstrous  prospect  capital  took  alarm, 

217 


DECISIVE   BATTLES   OF  THE   LAW 

business  languished,  the  government  came  to  a 
practical  standstill,  and  the  enemies  of  the  re- 
public, who  had  confidently  predicted  the  down- 
fall of  its  institutions  for  more  than  a  century, 
watched  the  menacing  situation  with  grim  satis- 
faction, laughing  in  their  sleeves  and  knowingly 
wagging  their  heads. 

It  was  at  this  crisis  that  sane  public  opinion 
asserted  itself  and  forced  a  peaceful  solution  of 
the  issue.  From  all  parts  of  the  country  and 
from  organizations  of  every  character  petitions, 
resolutions,  and  memorials  poured  in  upon  the 
assembled  legislators,  urging  and,  in  fact,  de- 
manding that  they  lay  aside  their  differences 
and  devise  some  means  of  settlement,  and  of 
this  popular  pressure  came  the  bill  creating 
the  Electoral  Commission.  It  was  not  ^vdth- 
out  much  misgiving  and  considerable  oppo- 
sition, however,  that  the  bill  became  a  law. 
Tilden  opposed  it  in  the  face  of  his  party's 
approval,  and  the  Republicans  fought  it  tooth 
and  nail.  Under  the  provisions  of  the  act  five 
of  the  proposed  judges  were  to  be  selected  from 
the  House,  which  insured  the  appointment  of 
five  Democrats;  five  were  to  be  nominated  by 
the  Senate,  which  was  certain  to  designate  Re- 
publicans, and  five  were  to  be  selected  from  the 

218 


THE   HAYES-TILDEN   CONTEST 

Supreme  Court  bench  —  two  Republican  ap- 
pointees and  two  Democratic,  these  four  to 
name  the  fifth.  Firmly  believing  that  this  plan 
necessitated  the  selection  of  Judge  David  Davis, 
Lincoln's  lifelong  friend,  who,  although  origi- 
nally a  Republican,  had  become  an  Independent 
with  Democratic  leanings,  the  Democrats  al- 
most unanimously  supported  the  measure,  and 
in  the  general  rejoicing  over  its  enactment  the 
voices  of  Tilden's  supporters  were  clearly  domi- 
nant. Their  joy,  however,  was  short-lived;  for 
after  the  bill  had  passed  the  Senate  and  while 
it  was  being  rushed  through  the  House,  the 
independent  Republicans  and  the  Democrats  in 
Illinois  combined  in  electing  Davis  to  the  Senate, 
rendering  him  practically  ineligible  to  serve  upon 
the  Commission,  and  compelling  the  designation 
of  a  Republican  to  complete  "  the  tribunal  whose 
authority  none  was  to  question  and  whose 
decision  all  were  to  accept." 

It  was  with  no  little  relief  that  patriotic 
Americans  watched  the  evolution  of  this  ex- 
traordinary court  from  the  chaos  of  evils  which 
had  disgraced  the  national  institutions  and 
threatened  them  with  ruin.  To  their  minds  it 
indicated  an  awakened  public  conscience;  it 
evidenced  the  triumph  of  patriotism  over  poli- 

219 


DECISIVE   BATTLES  OF  THE   LAW 

tics;  it  demonstrated  the  law-abiding  instinct 
of  a  people  fitted  for  self-government,  and 
promised  a  redeeming  climax  to  a  series  of 
national  humiliations.  Partisan  passion  and 
prejudice  had  held  sway  for  the  moment,  but 
statesmanship  and  justice  promised  finally  to 
prevail. 

Early  on  the  morning  of  February  2,  1877, 
the  room  which  had  once  sheltered  the  Senate 
was  besieged  by  throngs  of  men  and  women 
noisily  clamoring  for  admission ;  but  the  Cham- 
ber was  too  small  to  accommodate  more  than 
the  invited  guests  and  privileged  officials,  and 
the  gallery  which  had  not  been  opened  for  years 
was  reserved  for  reporters,  editors,  newspaper 
proprietors,  and  their  families.  The  gei.eral 
public  was  therefore  rigidly  excluded,  and  the 
audience  which  gathered  under  the  vigilant 
eyes  of  the  journalists  was  more  notable,  per- 
haps, than  any  which  had  previously  awaited 
the  opening  of  an  American  court. 

Behind  the  rail  sat  the  diplomatic  repre- 
sentatives of  almost  every  foreign  country,  all 
the  members  of  the  cabinet,  the  general  of  the 
army,  the  admiral  of  the  navy,  officers  of  both 
branches  of  the  service.  Senators,  Congressmen, 
judges,  and  distinguished  citizens,  and  at  the 

220 


THE   HAYES-TILDEN   CONTEST 

counsels'  table  as  remarkable  an  assemblage  of 
legal  talent  as  ever  appeared  in  any  cause. 

On  the  Democratic  side  sat  Charles  O 'Conor, 
an  advocate  almost  without  a  peer  in  his  day. 
His  day,  however,  was  waning  fast,  and  the 
pale,  care-worn  face  revealed  unmistakable 
traces  of  pain  and  illness,  and  suggested  a  doubt 
of  his  physical  fitness  for  the  great  struggle 
which  impended.  Near  this  famous  champion 
sat  another  veteran  of  the  bar,  whose  massive 
wigged  head,  burly  personality,  and  inseparable 
tobacco-box  were  familiar  to  all  the  courts,  for 
Jeremiah  S.  Black  was  known  throughout  the 
country  for  his  professional  skill.  It  was  natu- 
ral that  these  Democratic  jurists  should  have 
appeared  in  Tilden's  behalf;  but  associated  with 
them  was  a  man  whose  presence  could  not  be 
accounted  for  by  party  affiliations,  and  to 
those  who  knew  Lyman  Trumbull's  long  friend- 
ship with  Lincoln  and  his  record  as  a  Republican 
Senator,  his  appearance  in  support  of  the  Demo- 
cratic claims  was  suggestive,  even  though  he 
had  not  been  a  strict  party  man  for  some  years. 
Not  far  distant  from  these  distinguished  counsel, 
and  apart  from  his  associates,  the  journalists  in 
the  gallery  espied  Roscoe  Conkling  sitting  ab- 
sorbed in  thought,   and  instantly  the  excited 

221 


DECISIVE   BATTLES  OF  THE   LAW 

whisper  spread  that  the  great  Republican  cham- 
pion of  the  electoral  bill  intended  to  cast  aside 
his  party  allegiance  and  address  the  tribunal 
on  behalf  of  Tilden — a  rumor  which  had  some 
foundation,  but  no  confirmation.  Montgomery 
Blair,  Matt  H.  Carpenter,  ex- Judge  John  A. 
Campbell  of  the  Supreme  Court,  Richard  T. 
Merrick,  George  Hoadley,  A.  P.  Morse,  Ashbel 
Green,  and  William  C.  Whitney  completed  the 
list  of  Democratic  advisers — all  lawyers  of 
marked  ability,  although  Whitney's  talents 
were  not  then  generally  recognized,  and  it  was 
whispered  that  his  relationship  to  Commissioner 
Payne  was  responsible  for  his  presence. 

Formidable  as  was  this  gathering  of  legal 
experts,  their  opponents,  grouped  at  the  other 
end  of  the  long  table,  were  equally  redoubtable. 
As  leading  counsel  the  Republicans  had  retained 
William  M.  Evarts,  whose  thin,  keen  face  had 
acquired  a  network  of  lines  and  wrinkles  since 
the  day  he  had  defended  Andrew  Johnson,  and 
whose  fame  in  the  Alabama  case  had  been  still 
further  enhanced  by  his  recent  masterful  achieve- 
ments in  the  Beecher  trial,  and  upon  him  was 
destined  to  fall  the  brunt  of  the  Democratic 
attack.  Near  this  experienced  chieftain  sat  a 
heavily  built,  confident-looking  man  with  a  red 

222 


THE   HAYES-TILDEN   CONTEST 

face,  sandy  whiskers,  and  broad  intellectual  fore- 
head, destined,  after  a  fierce  struggle,  to  win  a 
seat  on  the  Supreme  Bench  as  a  reward  for  his 
services  not  only  in  the  case  at  bar,  but  in  the 
preliminary  contests,  for  Stanley  Matthews  had 
fought  hard  for  Hayes  in  Louisiana,  and  his 
name  was  already  familiar  to  the  public.  Be- 
side Matthews  sat  Edward  M.  Stoughton,  a 
shrewd  and  resourceful  lawyer,  and  behind  them 
appeared  Samuel  Shellabarger,  Hayes's  personal 
counsel,  armed  with  intimate  knowledge  of  every 
detail  of  the  controversy,  and  ready  for  every 
legal  emergency. 

Eleven  chairs  had  been  crowded  behind  the 
judicial  desk,  and  the  bench  extended  by  plac- 
ing a  table  at  either  end,  each  capable  of  accom- 
modating two  commissioners;  but,  except  for 
this  change  and  the  personnel  of  the  audience, 
the  appearance  of  the  room  was  the  same  as  it 
usually  presented  on  court  days.  With  the 
advent  of  the  commissioners,  however,  the  bench 
assumed  an  unfamiliar  aspect,  for  the  judges  had 
discarded  their  official  robes  in  deference  to  their 
lay  associates ;  and  as  the  fifteen  men  took  their 
places  before  the  silent  audience,  it  was  noted 
that  they  divided  upon  party  lines.  Judge 
Clifford   took   the   Chief -Justice's   place,    with 

223 


DECISIVE   BATTLES  OF  THE  LAW 

Justices  Miller  and  Bradley  on  his  left,  and 
Field  and  Strong  on  his  right.  Then  to  the  left 
ranged  the  Republicans,  Edmunds,  Morton,  and 
Frelinghuysen ;  and  at  the  right  the  Democrats, 
Abbott,  Hun  ton,  and  Payne,  while  at  one  of  the 
tables  sat  Garfield  and  Hoar,  and  at  the  other 
Thurman  and  Bayard — an  ominously  partisan 
arrangement  extremely  disquieting  to  those  who 
believed  that  the  Senators  and  Representatives 
could  as  easily  lay  aside  their  politics  as  the 
judges  could  their  robes.  Individually  and  col- 
lectively, however,  the  Commission  was  unques- 
tionably a  remarkable  body  of  men.  Seven  of 
its  fifteen  members  were,  or  had  been  judges — 
all  were  jurists  of  recognized  ability — o.ie  was 
destined  to  become  President,  another  Secretary 
of  State,  another  ambassador  to  England,  and 
others  to  distinguish  themselves  in  various  ways, 
and  their  existing  public  records  justified  the 
belief  that  they  would  rise  superior  to  all  party 
claims  and  do  impartial  justice. 

In  the  pause  that  followed  the  seating  of  the 
tribunal  the  attention  of  the  spectators  centred 
for  a  moment  upon  Justice  Bradley,  who  had 
been  selected  to  take  the  place  which  the  Demo- 
crats had  designed  for  Judge  Davis,  but  he  was 
apparently    unconscious    of    the    interest    he 

224 


THE  HAYES-TILDEN  CONTEST 

evoked.  His  clean-shaven,  expressive  face  indi- 
cated strong  character  and  great  personal  dig- 
nity, and  his  calmness  suggested  courage  and 
inspired  confidence. 

It  was  after  twelve  when  the  presiding  justice 
opened  the  proceedings  by  recognizing  David 
Dudley  Field,  brother  of  Justice  Field,  and  one 
of  the  Representatives  from  New  York,  who, 
although  he  had  voted  for  Hayes,  had  sought 
an  election  to  Congress  mainly  for  the  purpose 
of  espousing  Tilden's  cause,  and  who  rose  to 
present  the  formal  objections  of  the  Democrats 
to  the  Republican  certificate  from  Florida. 
Similar  objections  were  likewise  offered  by  Re- 
publican representatives  to  the  Democratic  cer- 
tificate, and  then  the  legal  battle  began. 

Complicated  as  the  various  objections  seemed 
to  be,  the  Democratic  point  of  attack  was  ap- 
parent and  the  issue  comparatively  simple. 
With  great  force  and  persuasive  earnestness, 
O' Conor  impeached  the  eligibility  of  one  of  the 
Republican  electors,  alleging  that  he  was  a 
Federal  office-holder  and  therefore  debarred  by 
the  Constitution  from  acting  as  an  elector,  and 
insisted  that  testimony  be  admitted  in  support 
of  this  charge.  The  strategy  of  this  move  was 
instantly  comprehended,  however,  by  the  Re- 

225 


DECISIVE   BATTLES  OF  THE   LAW 

publican  counsel,  who  saw  that  it  was  the  open- 
ing wxdge  to  an  examination  of  all  the  facts 
leading  to  the  issuance  of  the  certificate  to  the 
Republican  electors,  and  they  determined  that 
no  such  precedent  should  be  established.  Evarts 
therefore  promptly  flung  down  the  gauntlet  by 
announcing  his  contention  that  the  court  could 
consider  no  question  but  the  regularity  of  the 
certificates,  and  had  no  power  to  go  behind  the 
returns,  and  his  challenge  was  instantly  ac- 
cepted. Unless  they  were  permitted  to  show 
what  had  happened  before  the  Board  of  Can- 
vassers, and  in  what  manner  their  majorities 
had  been  eliminated,  the  Democrats  realized 
that  their  cause  was  lost,  and  they  immediately 
grappled  with  the  foe.  One  after  another, 
O' Conor,  Black,  and  Merrick  attacked  the  Re- 
publican position,  Merrick  drawing  the  enemy's 
fire  in  a  rapid  fusillade  of  questions  from  the 
Republican  commissioners,  indicating  anything 
but  an  impartial  attitude  on  their  part. 

It  was  at  this  juncture  that  Stanley  Matthews 
entered  the  fray,  and  his  opening  words  were 
singularly  daring  and  prophetic.  With  a  swift, 
almost  imperceptible  glance  at  Justice  Bradley, 
he  quoted  from  an  essay  on  Papal  Councils, 
wherein  the  author,  in  commenting  upon  the 

226 


THE  HAYES-TILDEN  CONTEST 

belief  that  they  were  enhghtened  by  the  pres- 
ence of  the  Holy  Ghost,  irreverently  remarked 
that  they  may  have  been  so  favored,  but  he 
generally  found  that  the  Spirit  had  resided  in  the 
odd  man. 

The  words  were  spoken  in  jest  and  were 
received  with  laughter,  but  the  bad  taste  that 
inspired  them  was  scarcely  less  offensive  than 
their  ominous  cynicism  to  those  who  cherished 
the  hope  of  an  impartial  decision. 

Stoughton  followed  Matthews  with  a  speech 
of  considerable  adroitness,  and  Evarts  and 
O' Conor  soon  joined  battle,  employing  the 
heavy  artillery  of  argument  behind  ramparts 
of  words,  until  their  ammunition  was  fairly 
exhausted.  Then  Justice  Field  forced  the  Re- 
publican leader  into  the  open,  and  it  required 
not  only  courage  but  downright  audacity  for 
Evarts  to  hold  his  own  under  the  rapid  fire  of 
questions  which  w^ould  have  swept  a  man  of 
less  reputation  off  his  feet. 

''  Suppose  the  canvassers  had  made  a  mistake 
in  footing  up  the  returns,"  suggested  the  judge, 
"and  suppose  that  mistake  changed  the  result 
of  the  election,  and  that  they  discovered  it 
before  the  electoral  vote  was  counted,  would 
there  be  no  remedy?" 

x6  227 


DECISIVE   BATTLES  OF   THE   LAW 

Evarts  looked  his  questioner  squarely  in  the 
eyes. 

"No!"  he  answered,  firmly. 

"Then,"  commented  the  justice,  "a  mistake 
in  arithmetic,  in  the  adding  up  of  figures,  may 
elect  a  President  of  the  United  States  and  the 
Congress  be  powerless  to  prevent  it!" 

The  audience  awaited  the  lawyer's  answer 
with  strained  attention,  but  no  question  had 
been  asked  him,  and  he  offered  no  response. 
The  silence  was  at  last  broken  by  Justice  Field, 
who  again  advanced  to  the  attack. 

"Suppose  the  canvassers  were  bribed,''  he 
began,  "or  suppose  they  had  entered  into  a 
conspiracy  to  commit  a  fraud,  and  in  pursuance 
of  that  bribery  or  conspiracy  altered  the  returns, 
declaring  as  elected  persons  not  chosen  by  the 
voters,  and  had  transmitted  the  vote  to  the 
President  of  the  Senate,  but  before  that  vote 
had  been  counted  the  fraud  was  detected  and 
exposed,  would  there  be  no  remedy?" 

Again  Evarts  met  the  searching  interrogation 
without  flinching. 

"No,"  he  answered;  "whatever  fraud  there 
is  must  be  discovered  and  protested  against 
before  the  Board  of  Canvassers  makes  its 
returns — " 

228 


THE  HAYES-TILDEN  CONTEST 

"  But  suppose  the  members  of  the  board  were 
themselves  the  conspirators?" 

''  It  makes  no  difference  under  the  law/' 

**If  this  be  sound  doctrine,"  observed  the 
judge,  "it  is  the  only  instance  in  the  world 
where  fraud  becomes  enshrined  and  sanctified 
behind  the  certificate  of  its  authors.  It  is  ele- 
mentary knowledge  that  fraud  vitiates  all  pro- 
ceedings, even  the  most  solemn — that  no  fonn 
of  words,  no  amount  of  ceremony,  and  no 
solemnity  of  procedure  can  shield  it  from 
exposure." 

Again  Evarts  made  no  answer,  but  stood  his 
ground  defiantly,  the  audience  watching  him, 
spellbound  and  almost  without  breathing. 

"Suppose  the  canvassers  were  coerced  by 
force,''  continued  the  relentless  questioner; 
"suppose  men  put  pistols  at  their  heads  and 
threatened  to  blow  out  their  brains  if  they  did 
not  perjure  themselves,  would  there  be  no 
remedy?" 

Again  No!  and  No!  again.  Neither  mistake 
nor  fraud  nor  force  justified  Congress  in  re- 
versing the  action  of  the  State  canvassers,  and 
the  certificate  issued  on  their  return  must 
stand.  Neither  the  Constittition  nor  the  laws 
authorized  Congress  to  go  behind  the  returns, 

229 


DECISIVE   BATTLES  OF  THE  LAW 

and  the  court  had  no  power  except  that  which 
Congress  possessed. 

Had  he  faltered  in  his  answer  to  those  search- 
ing questions,  had  even  the  expression  of  a 
doubt  crossed  his  face,  it  is  not  impossible  that 
Evarts  would  have  lost  his  cause.  But  to  his 
professional  mind  the  law  was  the  law.  It  was 
not  justice;  it  was  not  expediency;  it  was  not 
necessarily  logical  or  even  defensible,  but  it  was 
unalterable,  and  with  unquivering  eyelids  he 
outfaced  his  questioner  and  carried  the  day. 

On  the  5th  of  February  the  commissioners 
retired  to  deliberate,  and  on  the  8th  they  deter- 
mined by  a  vote  of  eight  to  seven  not  to  go 
behind  the  returns,  every  Republican  siding 
with  the  majority  and  every  Democrat  oppos- 
ing— a  strictly  partisan  vote.  ''I  would  rather 
lose  by  a  unanimous  decision  than  win  on  such 
a  showing,"  was  the  comment  of  a  disheartened 
Republican  patriot,  and  his  words  voiced  the 
thought  of  all  who  had  looked  to  the  court  for 
an  authoritative  utterance  free  of  political  taint. 

To  the  legal  fraternity  that  preliminary  de- 
cision was  deeply  significant,  but  patriotic 
optimists  still  clung  to  the  belief  that  the 
court  would  yet  assert  its  independence,  and 
when  testimony  was  admitted  to  establish  the 

230 


THE   HAYES-TILDEN  CONTEST 

disqualification  of  the  office-holding  Republi- 
can elector,  the  spirits  of  the  optimists  rose 
accordingly.  The  evidence,  however,  demon- 
strated that  the  accused  official  had  resigned  the 
Federal  position  which  was  supposed  to  bar 
him  from  acting  as  an  elector,  and  that  tech- 
nically he  was  within  the  law.  On  the  8th  of 
February  the  commissioners  again  retired  for 
deliberation,  and  when  they  returned  on  the 
9th  and  awarded  Florida  to  Hayes  by  the  same 
partisan  vote  of  eight  RepubHcans  against  seven 
Democrats,  the  supporters  of  Tilden  lost  heart 
and  sensitive  Republicans  hung  their  heads. 

And  yet,  had  they  but  known  it,  a  great 
opportunity  still  lay  before  the  Democrats,  and 
those  in  the  Republican  secrets  were  yet  to  face 
the  worst  quarter-hour  of  their  lives,  for  some 
of  them  had  taken  desperate  chances  in  the 
interests  of  their  party,  and  they  faced  the  open 
doors  of  a  prison  when  the  opposing  certificates 
from  Louisiana  reached  the  Presiding- Justice, 
Clifford. 

It  was  on  the  morning  of  February  13th  that 
this  crisis  was  reached,  and  the  court  was  again 
crowded  to  its  utmost  capacity.  All  the  com- 
missioners were  present  and  all  the  counsel  who 
had    attended    the    previous    sessions,    except 

231 


DECISIVE   BATTLES  OF  THE   LAW 

O' Conor  whose  place  was  occupied  by  ex- Judge 
Campbell.  There  was,  therefore,  no  lack  of 
astute  advisers  for  the  Democracy.  They  were 
the  flower  of  the  bar — trained  observers  whose 
professional  duties  had  taught  them  to  scruti- 
nize every  detail  in  a  case  and  take  nothing  for 
granted,  while  on  the  bench  were  seven  Demo- 
cratic jurists,  equally  well  equipped  and  vigi- 
lant. With  such  an  array  of  legal  experts 
watching  the  interests  of  their  clients  it  seemed 
impossible  that  deception  should  be  success- 
fully practised  or  fraud  go  undetected,  and  yet 
the  impossible  happened. 

The  proceedings  opened  as  usnal  with  the 
reception  of  the  conflicting  certificates  from  the 
Senate-chamber — five  documents  in  all — and 
while  these  important  papers  were  being  per- 
functorily examined  and  initialled  by  the  pre- 
siding justice,  the  journalists  in  the  gallery  idly 
watched  the  scene,  the  lawyers  whispered  to- 
gether, and  prepared  for  the  coming  contests, 
the  general  public  waited,  bored  and  inattentive, 
and  some  of  the  Republican  managers  sat  quak- 
ing with  fear. 

Judge  Clifford  finally  laid  aside  his  pen,  and 
it  was  ordered  that  the  various  exhibits  which 
he  had  been  marking  be  printed  and  copies 

232 


THE   HAYES-TILDEN  CONTEST 

furnished  for  the  convenience  of  the  counsel 
and  commissioners.  Had  a  single  objection  to 
this  routine  been  interposed;  had  prudence, 
habit,  or  even  curiosity  impelled  any  of  the 
Democratic  counsel  to  scrutinize  the  original 
documents,  or  had  enterprise  prompted  any 
journalist  to  examine  and  compare  them,  a 
sensational  exposure  would  have  been  inevita- 
ble, for  one  of  the  Republican  certificates  was 
clumsily,  even  obviously,  forged/ 

^  Under  the  Constitution  three  copies  of  the  certificate  of  the 
Louisiana  vote  were  necessary,  one  of  which  had  to  be  forwarded 
to  the  President  of  the  Senate  by  mail,  another  delivered  to  him 
by  hand,  and  the  third  deposited  with  the  United  States  District 
Judge — all  of  which  had  to  be  accomplished  within  a  certain 
number  of  days.  When  the  Republican  messenger — one  T.  C. 
Anderson — arrived  in  Washington  and  delivered  the  package 
containing  one  of  those  three  certificates  to  Mr.  Ferry,  the  Presi- 
dent of  the  Senate,  that  gentleman  called  his  attention  to  an 
irregularity  in  the  form  of  the  indorsement  on  the  envelope  and 
suggested  that  he  consider  its  legal  effect.  Anderson  therefore 
retained  the  package  and  secretly  opened  it  to  ascertain  if  the 
error  had  been  repeated  in  the  certificate  itself.  To  his  con- 
sternation he  discovered  far  more  vital  defects  in  the  document, 
and  flying  back  to  New  Orleans,  consulted  with  the  party  leaders, 
who  agreed  that  the  instrument  must  be  redrawn,  and  the  electors 
were  hastily  resummoned.  Then,  to  the  managers'  horror,  it 
was  discovered  that  two  of  the  necessary  officials  were  absent 
and  could  not  possibly  be  reached  within  the  time  limited  by 
law  for  the  deHvery  of  the  paper  in  Washington.  "Heroic" 
measures  were  therefore  deemed  essential,  and  after  all  the 
available  signatures  had  been  obtained  the  others  were  forged 
and  the  doctored  certificate,  which,  of  course,  was  obviously 
different  from  the  one  previously  fowarded  by  mail,  was  rushed 

233 


DECISIVE   BATTLES  OF  THE   LAW 

Had  this  been  discovered,  it  is  not  impossi- 
ble that  one  or  more  of  the  Repubhcan  commis- 
sioners, who  were  suspected  of  wavering  in  their 
party  allegiance,  would  have  voted  for  a 
thorough  investigation,  and  an  entirely  dif- 
ferent result  might  have  been  effected.  From 
a  strictly  legal  point  of  view  the  forgery  was 
not  necessarily  fatal  to  the  validity  of  the  certi- 
ficates, for  they  had  been  executed  in  triplicate 
and  only  one  of  the  three  was  tainted  with 
fraud,  but  the  storm  of  popular  indignation 
which  would  undoubtedly  have  followed  the 
discovery  of  this  fact  might  well  have  severed 
one  of  the  Commissioners  from  his  party  alle- 
giance. But  however  that  might  have  been, 
neither  suspicion  nor  inspiration  put  the  Demo- 
cratic champions  on  their  guard,  and  the  op- 
portunity passed  unheeded,  never  to  return. 

Wholly  unconscious  of  this  glaring  defect  in 
their  enemies'  armor,  the  Democratic  counsel 
proceeded  to  give  battle  on  svibstantially  the 
same  lines  which  had  brought  them  to  defeat 
in  the  Florida  case.     There  was,  however,  some 


back  to  Washington  just  in  the  nick  of  time.  All  these  facts 
were  subsequently  unearthed,  but  those  who  actually  committed 
the  forgeries  were  never  detected. — H.  R.  R.  No.  140,  45//? 
Cong.,  ^d  Session,  pp.  50-63  and  89-91. 

234 


THE   HAYES-TILDEN   CONTEST 

reason  to  hope  that  the  court  might  yet  reverse 
itself,  for  popular  denunciation  of  the  partisan 
vote  had  not  been  confined  to  the  supporters 
of  Tilden,  and  the  effect  of  public  opinion  upon 
political  judges  could  not  be  disregarded.  More- 
over, the  Louisiana  case  was  particularly  strong 
upon  the  merits,  for  it  was  well  known  that  the 
heavy  Democratic  majorities  had  forced  the 
Board  of  Canvassers  to  reject  votes — not  spar- 
ingly, as  had  been  sufficient  in  Florida,  but  by 
thousands  upon  thousands — and  it  was  believed 
that  some  of  the  eight  Republicans  could  yet  be 
induced  to  vote  for  an  examination  into  the 
facts. 

With  these  incentives,  therefore,  Carpenter 
and  Trumbull  began  the  attack,  and  for  half  a 
day  they  battled  manfully  against  the  adverse 
precedent  which  had  been  established  in  the 
Florida  case,  demanding  that  the  court  overrule 
itself  and  cease  to  shield  injustice  under  tech- 
nicalities. Appealing  as  their  arguments  were, 
the  answers  of  Stoughton  and  Shellabarger,  the 
Republican  counsel,  were  well  calculated  to  hold 
the  majority  of  the  court  together,  for  they 
showed  that  an  examination  into  the  facts 
would  entail  an  almost  interminable  proceeding, 
precluding  any  possibility  of  a  decision  until 


DECISIVE   BATTLES  OF  THE   LAW 

long  after  Grant's  term  had  expired.  In  the 
mean  time  there  would  be  no  President  or  Vice- 
President,  and  the  result  of  such  an  unsettled 
condition  of  affairs  upon  the  business  of  the 
country  would  be  wellnigh  disastrous.  This 
prospect  was  sufficiently  alarming  to  sustain  the 
wavering  majority,  and  after  Evarts  and  Judge 
Campbell  had  fought  each  other  for  another 
day  with  legal  citations,  history,  philosophy, 
and  all  the  other  weapons  of  debate,  argument 
was  again  exhausted,  and  the  court  once  more 
retired  for  deliberation.  The  fight,  however, 
was  immediately  continued  in  the  consulting- 
room.  Motion  after  motion  was  riade  by  the 
Democratic  commissioners  for  a  favorable  de- 
cision on  their  contentions,  but  without  avail. 
No  matter  in  what  form  their  propositions 
were  submitted,  the  eight  Republicans  voted 
them  down  and  the  seven  Democrats  dissented. 
Finally  it  was  proposed  to  reject  all  the  returns 
and  throw  out  the  vote  of  Louisiana  altogether 
— a  proceeding  fully  justified  by  the  situation, 
and  for  which  there  was  precedent — but  this 
was  likewise  defeated  by  the  same  vote  of  eight 
to  seven.  Then  Commissioner  Morton,  who  is 
supposed  to  have  been  warned  that  there  was 
something  wrong  with  the  Republican  certificate 

236 


THE  HAYES-TILDEN  CONTEST 

marked  No.  3,  moved  that  the  votes  reported  in 
certificate  No.  i — the  document  which  Ferry 
had  received  by  mail — be  counted  for  Hayes, 
and  his  resolution  was  carried  by  the  monoto- 
nous majority  of  one. 

With  this  decision  the  case  practically  ended. 
On  February  2 2d  Hoadley  and  Merrick  led  a 
forlorn  hope  in  an  attack  upon  the  returns  from 
Oregon,  but  as  the  Republicans  were  strongly 
intrenched  behind  the  precedents  already  estab- 
lished, and  as  they  had  concededly  carried  that 
State,  Evarts  and  Matthews  had  no  difficulty 
in  repulsing  the  enemy,  and  after  one  day's 
fighting  the  dominant  majority  in  the  Commis- 
sion decreed  Oregon's  three  votes  to  Hayes 
against  the  futile  protest  of  their  seven  asso- 
ciates. 

Finally  the  case  of  South  Carolina  was  called, 
but  the  Democratic  electors  did  not  have  a 
majority  on  the  face  of  the  returns  from  that 
State,  and  all  public  interest  in  the  contest  had 
now  evaporated.  With  the  audience-chamber 
practically  deserted,  and  before  a  listless  and  in- 
attentive bench,  the  Republican  counsel  waived 
their  right  to  a  hearing,  and  submitted  their 
papers  to  the  court  without  argument.  Blair 
and  Black,  however,  made  a  last  stand  for  the 

237 


DECISIVE   BATTLES  OF  THE   LAW 

Democrats,  the  latter  attacking  the  partisan 
commissioners  with  scathing  scorn  and  un- 
bridled fury,  his  closing  words  referring  to  the 
rumor  that  a  secret  agreement  had  been  effected 
with  the  incoming  administration  to  end  the 
policy  of  Reconstruction. 

"They  offer  us  everything  now!"  he  exclaim- 
ed, with  bitterness.  ''They  denounce  negro 
supremacy  and  carpet-bag  thieves.  Their  pet 
policy  for  the  South  is  to  be  abandoned.  They 
offer  us  everything  but  one;  but  on  that  sub- 
ject their  lips  are  closely  sealed.  They  refuse 
to  say  that  they  will  not  cheat  us  hereafter  in 
the  elections." 

With  the  thunder  of  these  denunciations 
reverberating  in  their  ears  the  Republican  eight 
awarded  South  Carolina  to  Hayes  on  February 
27th,  and  three  days  later  the  great  Electoral 
Commission  ingloriously  dispersed. 

It  was  not  in  vain,  however,  that  the  battle 
had  been  fought,  for  of  the  sectional  contagion 
which  contaminated  the  court-room  and  affect- 
ed the  judges,  the  policy  of  Reconstruction  died. 
As  Black  had  prophesied,  within  two  years  the 
administration,  recognizing  that  another  such 
victory  would  destroy  the  party,  abandoned  the 
State  officials  in  South  Carolina  and  Louisiana 

238 


THE  HAYES-TILDEN  CONTEST 

who  had  been  declared  elected  by  the  same 
boards  which,  with  less  reason,  had  awarded 
the  electoral  votes  to  Hayes ;  carpet-bag  govern- 
ment became  only  an  evil  memory  in  the  South, 
and  ten  years  later  an  act  was  passed  regulating 
the  counting  of  disputed  electoral  votes  which 
diminished  if  it  did  not  eHminate  one  of  the 
gravest  constitutional  evils  imperilling  the  safety 
of  the  republic. 


VIII 

PEOPLE  VS.  SPIES  et  al.: 

THE    CHICAGO    ANARCHISTS'    CASE 

T^HE  atmosphere  of  the  Criminal  Court  of 
^  Cook  County  was  ominously  business-like 
on  the  morning  of  June  21,  1886.  Save  for  the 
group  of  women  gathered  about  the  judge  be- 
hind the  judicial  desk,  no  one  in  the  huge,  bam- 
like  court-room  seemed  to  be  in  attendance  from 
mere  idle  curiosity,  and  every  one,  from  the 
judge  upon  the  bench  to  the  bailiffs  guarding  the 
doors,  looked  unmistakably  grave.  Far  larger 
audiences  had  frequently  assembled  in  that  un- 
pretentious chamber,  for  the  long  galleries  at 
either  end  were  closed  to  the  public,  and  com- 
paratively few  of  the  spectators  on  the  floor 
were  standing;  but  unusual  as  this  condition 
of  affairs  was  for  the  opening  of  an  important 
murder  trial,  it  did  not  apparently  satisfy  the 
presiding  official,  whose  severe  glance  swept  dis- 
approvingly over  the  scene.     ''  Persons  who  can- 

240 


PEOPLE  vs.   SPIES  et  al. 

not  find  seats  must  instantly  leave  the  room,"  he 
commanded,  sharply.  ''The  bailiffs  will  im- 
mediately enforce  this  rule." 

There  was  no  mistaking  the  determination  of 
the  speaker.  Slowly,  but  without  resistance, 
the  unseated  spectators  were  herded  from  the 
court  and  the  doors  closed  behind  them.  Then 
the  judge  turned  to  the  prosecutor's  table  at  the 
right  of  the  low  platform  supporting  the  bench 
and  nodded  to  an  intellectual-looking  man,  who 
seemed  to  be  awaiting  the  signal,  for  he  imme- 
diately rose  and  broke  the  intense  silence  by 
observing  that  the  State  was  ready  in  No.  1195. 

This  conventional  announcement,  uttered  in 
a  quiet,  conversational  tone,  marked  the  opening 
of  a  cause  wholly  unprecedented  in  the  United 
States,  and  in  many  respects  unparalleled  in  the 
history  of  the  world,  but  those  who  anticipated 
something  more  dramatic  were  to  have  their  ex- 
pectations realized  in  a  most  surprising  manner 
before  many  minutes  had  elapsed. 

For  nearly  seven  weeks  Chicago  had  been 
feverishly  awaiting  judicial  action  on  an  out- 
rage which  had  at  first  horrified,  then  frightened, 
and  finally  exasperated  the  community  to  a 
point  which  threatened  the  due  administration 
of  justice.     On  the  night  of  May  4,  1886,  a  mass- 

241 


^ 


DECISIVE   BATTLES  OF  THE  LAW 

meeting  had  been  held  near  Haymarket  Square 
under  the  auspices  of  certain  anarchist  organiza- 
tions to  protest  against  the  action  of  the  pohce 
in  repressing  disorder  during  a  wide-spread  strike 
to  enforce  the  eight-hour  labor  day.  While  this 
meeting  was  in  progress  a  company  of  policemen 
had  appeared  under  the  command  of  Inspector 
Bonfield,  and  Captain  Ward,  one  of  the  subor- 
dinate officers,  ordered  the  crowd  to  disperse. 
The  words  had  scarcely  left  his  lips  when  some 
one  hurled  a  dynamite  bomb  among  the  men 
behind  him,  killing  seven  of  them  and  injuring 
sixty  others,  and  in  the  excitement  and  con- 
fusion that  followed  the  assassin  had  easily 
made  his  escape. 
/  It  did  not  take  long  for  the  citizens  of  Chicago 
to  realize  the  menacing  nature  of  this  attack 
upon  law  and  order,  but  before  they  fairly  re- 
covered from  the  shock  the  authorities  began  an 
investigation  which  for  thoroughness  and  in- 
telligence has  never  been  surpassed  in  the  annals 
of  the  American  police.  Within  a  week  almost 
every  prominent  anarchist  in  the  city  was  under 
arrest,  and  the  newspapers,  teeming  with  stories 
of  their  plots  for  wholesale  murder,  roused  the 
public  to  the  point  of  fury.  Execration  of  such 
outrages  was  confined  to  no  particular  class  of 

242 


PEOPLE   vs.   SPIES  et  al. 

citizens.  All  sorts  and  conditions  of  men — 
wage-earners  and  capitalists  alike  throughout 
the  country — vied  with  each  other  in  demanding 
the  prompt  suppression  of  anarchy,  and  al- 
though the  first  burst  of  popular  rage  had  un- 
doubtedly spent  itself  before  the  accused  men 
were  arraigned  at  the  bar,  the  feeling  that  follow- 
ed was  perhaps  even  more  dangerous  to  their 
safety.  The  wild  denunciations  of  existing  so- 
cial conditions  which  had  been  openly  uttered 
in  the  city  for  years,  only  to  be  disregarded  or 
laughed  at,  had  suddenly  become  infamous,  and 
there  was  no  mistaking  the  popular  temper  in 
regard  to  them.  If  free  speech  had  been  abused, 
and  its  abuse  encouraged  by  the  indifference  of  a 
good-natured  people,  it  was  high  time  that  those 
who  had  overstepped  their  privileges  learned 
that  they  had  done  so  at  their  peril,  and  public 
opinion  demanded  that  the  lesson  be  so  taught 
that  it  would  never  be  forgotten.   ;y 

This  was  the  spirit  animating  the  crowd  which 
hung  upon  the  prosecutor's  opening  words  on 
the  longest  day  in  the  year,  1886,  and  a  more 
thoroughly  informed  audience  never  assembled 
in  a  court  of  law.  Not  only  was  every  detail  of 
the  police  investigations  familiar  to  all  news- 
paper readers,  but,  through  the  publication  of 
17  243 


DECISIVE   BATTLES  OF  THE  LAW 

their  photographs  and  records,  all  the  principal 
actors  in  the  impending  drama  had  long  been 
public  characters.  Probably  every  man  and 
woman  in  the  court-room  recognized  the  severe, 
distinguished-looking  judge  as  the  Hon.  Joseph 
E.  Gary,  who  had  fought  his  way  from  the  car- 
penter's to  the  judicial  bench,  and  whose  rep- 
utation as  jurist  and  martinet  insured  dignity 
and  effectiveness  at  all  legal  proceedings  over 
which  he  presided.  Similar  details  concerning 
other  officials  and  parties  in  interest  were  mat- 
ters of  common  knowledge.  State*s  Attorney 
Julius  S.  Grinnell,  the  intellectual-looking  man 
with  eye-glasses,  who  had  answered  the  judge*s 
initial  nod,  was  almost  a  national  character,  for 
his  duties  as  public  prosecutor  had  made  him 
one  of  the  most  conspicuous  officials  in  the 
United  States,  and  the  young  men  gathered 
about  him  in  close  consultation — Francis  W. 
Walker  and  Edmund  Furthman,  of  his  official 
staff,  and  George  C.  Ingham,  specially  retained 
to  supplement  their  efforts — had  already  ac- 
quired considerable  local  celebrity.  Perfect  con- 
fidence was  reposed  in  this  legal  quartet,  for 
Mr.  Grinnell,  fully  realizing  that  Chicago *s  rep- 
utation for  law  and  order  was  at  stake,  and  that 
the  opportunity  of  his  life  lay  before  him,  had 

244 


y 


PEOPLE  vs.   SPIES  et  al 

prepared  his  case  in  almost  record  time,  and  had 
selected  as  his  subordinates  men  well  fitted  for 
the  work  at  hand. 

Their  opponents  were  not  so  well  known,  for 
the  press  had  devoted  Httle  space  to  them,  and 
the  state  of  public  opinion  in  regard  to  the  case 
made  the  task  of  its  defence  particularly  un- 
grateful. Of  the  four  lawyers  representing 
the  accused,  two  had  had  very  little  experience 
in  the  courts,  for  Sigmund  Zeisler,  though  an 
able  man,  was  a  foreigner  only  recently  admitted 
to  the  Illinois  bar,  and  his  partner,  Moses 
Salomon,  was  a  beardless  youth  of  no  recognized 
standing.  WilHam  P.  Black  and  WilHam  A. 
Foster,  the  senior  counsel,  were,  however,  ex- 
perienced advocates,  the  former  being  a  famiHar 
figure  in  the  local  courts,  where  he  had  acquired 
a  reputation  for  pugnacity  which  boded  ill  for 
that  swift  and  unobstructed  administration  of 
the  law  then  generally  regarded  as  essential  to 
the  pubHc  safety.  Indeed,  it  was  with  no  little 
relief  that  the  over-anxious  champions  of  law 
and  order  noted  his  absence  when  the  prisoners 
were  brought  into  court,  and  the  rumor  swiftly 
spread  that  he  had  abandoned  the  case.  Black, 
however,  was  planning  a  very  different  and  far 
more  startHng  move. 

245 


DECISIVE   BATTLES  OF  THE   LAW 

M  Bitter  as  was  the  public  feeling  against  the 
closely  guarded  prisoners  who  sat  at  the  left  of 
their  counsels'  table,  it  was  generally  under- 
stood that  none  of  them  had  personally  com- 
mitted the  crime  with  which  they  stood  charged, 
and  with  the  exception  of  the  wild-eyed  young 
degenerate  Louis  Lingg,  there  was  nothing  even 
suggesting  a  criminal  in  their  appearance. 
August  Spies,  the  editor  of  the  anarchist  paper 
Die  Arbeiter  Zeitung,  looked  like  a  German 
student,  his  little  mustache  with  waxed  ends 
giving  him  quite  a  military  air.  His  associate, 
Michael  Schwab,  with  his  long  beard  and  spec- 
tacles and  intellectual  face,  might  easily  have 
passed  for  a  German  professor.  Samuel  Fielden, 
the  English  agitator  and  anarchist,  likewise  sug- 
gested the  student  and  scholar,  and  his  strong, 
intelligent  face  bespoke  a  man  of  unusual  ability. 
Adolph  Fischer,  George  Engel,  and  Oscar  W. 
Neebe,  the  other  defendants,  were  weak  rather 
than  vicious  looking,  and  a  glance  at  their  faces 
was  sufficient  to  suggest  how  dangerous  a  little 
knowledge  might  prove  to  their  minds.  All  of 
these  men  were  foreigners,  and  some  of  them 
did  not  even  speak  the  English  language,  but 
there  was  absolutely  no  prejudice  against  them 
on  this  account.     Indeed,  the  public  indigna- 

246 


PEOPLE   vs.    SPIES   et  al. 

tion,  as  far  as  it  was  directed  against  any  par- 
ticular individual,  centred  upon  the  only  Amer- 
ican accused  of  the  crime,  and  the  fact  that  he 
was  not  in  court  was  a  bitter  disappointment  to 
the  police,  for  of  all  the  anarchist  leaders  he 
was  the  only  one  who  had  even  attempted  to 
escape. 

It  was  not  because  the  authorities  had  not 
sought  him  diligently  that  Albert  R.  Parsons  w^as 
still  at  large.  Never  had  a  fugitive  from  justice 
been  more  systematically  hunted,  but  though  the 
police  force  of  the  entire  \vorld  had  been  upon 
his  track,  they  had  not  run  him  down.  For  a 
time  his  disappearance  was  interpreted  as  a  con- 
fession of  guilt,  and  it  would  have  surprised  no 
one  if  he  had  been  indicted  as  a  principal,  but 
the  Grand  Jury  merely  named  him  as  an  ac- 
cessory, charged,  like  the  others,  with  having 
instigated  and  encouraged  the  crime.  Mean- 
while the  search  for  him  continued  unabated, 
for  as  long  as  he  remained  at  liberty  the  record 
of  the  police  was  seriously  marred.  The  day 
of  trial  had  arrived,  however,  without  the  slight- 
est clue  to  his  hiding-place,  and  not  the  least 
damaging  circumstance  that  confronted  the 
seven  prisoners  on  trial  was  the  incriminating 
flight  of  the  leader  who  had  addressed  their 

247 


DECISIVE   BATTLES  OF  THE   LAW 

meeting  only  a  few  minutes  before  the  explosion 
of  the  fatal  bomb. 

Such  was  the  situation  when  Mr.  Grinnell 
moved  his  case  to  trial,  but  the  preliminary 
examination  of  talesmen  for  the  jury  had  scarce- 
ly begun  before  the  proceedings  were  interrupted 
by  the  entrance  of  two  men,  one  of  whom  was 
readily  identified  as  Captain  Black  the  missing 
counsel  for  the  defence.  The  other  was  not  im- 
mediately recognized,  and  he  had  almost  reached 
the  bench  before  the  prosecutor  sprang  excited- 
ly to  his  feet. 

*'  I  see  Albert  R.  Parsons,  indicted  ^or  murder, 
in  this  court,  and  demand  his  instant  arrest!" 
he  shouted. 

Captain  Black  halted,  turning  savagely  upon 
the  speaker. 

"This  man  is  in  my  charge,  and  such  a  de- 
mand is  not  only  theatrical  clap-trap,  but  an 
insult  to  me!"  he  retorted,  indignantly. 

Captain  Schaack,  Inspector  Bonfield,  and  a 
dozen  other  detectives  and  police  officials  were 
instantly  upon  their  feet,  but  the  audience, 
scarcely  believing  its  eyes  or  ears,  sat  in  dumb 
amazement  as  the  two  lawyers  angrily  faced  each 
other.  Before  another  word  could  be  uttered, 
however,  Parsons  himself  set  all  doubts  at  rest. 

248 


PEOPLE  vs,   SPIES  et  al 

''  I  present  myself  for  trial  with  my  comrades, 
Your  Honor, ' '  he  observed,  with  perfect  calmness. 

If  Judge  Gary  did  not  entirely  retain  his  com- 
posure, he  at  least  gave  no  outward  evidence  of 
astonishment. 

"  You  will  take  a  seat  with  the  prisoners,  Mr. 
Parsons,"  he  directed,  as  though  nothing  un- 
usual had  occurred,  and  immediately  instructed 
the  counsel  to  prepare  the  necessary  papers, 
allowing  the  new  defendant  to  enter  a  plea  and 
stand  trial  with  the  others.  An  eighth  chair 
was  thereupon  added  to  the  prisoners'  row,  and 
Parsons  was  soon  shaking  hands  and  conversing 
with  his  co-defendants,  while  his  lawyers  com- 
plied with  the  legal  formalities,  and  in  a  few 
minutes  the  great  case  was  again  under  way. 

Whatever  may  be  thought  of  the  strategic 
expediency  of  Parsons's  move — and  there  is 
strong  evidence  that  it  was  positively  disap- 
proved by  at  least  one  of  his  counsel — there  can 
be  no  question  that  it  displayed  courage  and  un- 
selfishness of  a  high  order.  Had  he  continued 
in  hiding  until  a  jury  had  been  empanelled,  he 
would  have  secured  the  immense  advantage  of 
a  separate  trial  after  the  public  clamor  had  been 
satisfied  or  diminished,  without  depriving  the 
other  defendants  of  the  benefit  of  his  presence  or 

249 


DECISIVE   BATTLES  OF  THE   LAW 

his  testimony.  Mr.  Foster  urged  this  course, 
pointing  out  the  danger  (3f  a  trial  with  seven 
other  persons,  where  all  sorts  of  testimony  would 
be  admitted,  and  the  innocent  be  likely  to  suffer 
with  the  guilty,  but  his  advice  was  disregarded. 
Parsons  deliberately  chose  to  share  the  hazard 
of  his  friends'  fortunes,  and  in  so  choosing  it  can- 
not be  denied  that  he  displayed  a  fortitude  and 
devotion  well  worthy  of  respect. 

Such,  however,  was  not  the  opinion  of  Chi- 
cago, where  his  return  was  interpreted  as  further 
evidence  of  his  notorious  contempt  and  defiance 
of  the  law,  and  the  fact  that  he  was  an  Ameri- 
can deepened  the  feeling  against  him.  But  if, 
as  has  been  claimed,  he  was  unaware  that  the 
public  indifference  to  anarchy  had  given  place 
to  detestation  of  its  teachings,  the  examination 
of  the  citizens  summoned  for  jury  duty  must 
have  completely  disillusioned  him.  Certainly 
no  court  record  in  the  United  vStates  reveals  a 
deeper  or  more  wide-spread  public  prejudice 
than  that  disclosed  by  the  sworn  testimony  of 
the  talesmen  in  this  case.  Hour  after  hour 
passed  without  the  discovery  of  even  one  can- 
didate fitted  for  dispassionate  service,  and  panel 
after  panel  of  prospective  jurymen  was  ex- 
hausted with  like  result.     Days  passed  without 

250 


PEOPLE   vs.    SPIES   ct  al. 

much  better  success,  and  the  days  stretched  into 
weeks.  Everybody  seemed  to  have  an  opinion 
— and  a  decided  opinion,  too — that  the  men  on 
trial  were  guilty,  and  the  few  who  did  not  hold 
such  positive  views  were  so  convinced  that 
something  radical  ought  to  be  done  to  discour- 
age lawlessness  that  they  could  not  trust  them- 
selves to  judge  the  case  upon  its  merits.  Finally 
the  defence  exhausted  all  its  peremptory  chal- 
lenges, and  after  twenty-two  days  of  unremit- 
ting labor,  during  which  no  less  than  g8i  persons 
were  examined,  twelve  men  were  sworn  into  the 
jury-box  who,  while  not  ideal  jurors,  were  per- 
haps as  open-minded  as  could  be  expected  un- 
der the  existing  condition  of  public  sentiment. 
No  enviable  fate  awaited  those  twelve  good  men 
and  true.  From  the  moment  of  their  accept- 
ance as  jurors  they  were  virtual  prisoners,  con- 
fined when  out  of  court  in  an  adjoining  hotel, 
guarded  by  baihffs  night  and  day,  and  cut  off 
from  all  communication  with  the  outer  world. 

It  was  July  15th  before  Mr.  Grinnell  rose  to 
make  his  opening  address,  which,  despite  the 
minute  information  furnished  by  the  press,  was 
a  revelation  to  his  audience,  and  not  until  they 
had  listened  to  his  bitter,  forceful  arraignment 
did  the  counsel  for  the  defence  fully  reaUze  the 

2.S1 


DECISIVE   BATTLES  OF  THE   LAW 

desperate  fight  that  lay  before  them.  Amid 
breathless  silence  the  prosecutor  claimed  that  he 
would  show  that  the  defendants  were  not  in- 
directly but  directly  responsible  for  the  crime, 
having  deliberately  planned  it  and  other  similar 
outrages,  and  that  he  would  produce  the  man 
who  had  done  the  deed. 

The  sensation  created  by  this  announcement 
was  not  confined  to  the  outsiders,  for  in  the 
excitement  of  the  moment  Mr.  Grinnell  had 
promised  more  proof  than  he  had  in  his  pos- 
session, and  under  different  circumstances  his 
over-zealousness  in  this  and  other  respects  might 
have  seriously  damaged  his  case.  The  details 
which  he  gave,  however,  disposed  of  the  theory 
that  the  defendants  were  to  be  prosecuted  be- 
cause of  their  opinions,  and  that  no  direct  proof 
of  their  connection  with  the  crime  could  be 
produced — a  story  which  was  already  beginning 
to  win  sympathy  for  their  cause. 

At  the  conclusion  of  this  startling  address 
the  first  witness  was  called  to  the  stand,  and 
from  that  moment  the  trial  proceeded  rapidly. 
Without  difficulty  it  was  proved  that  all  the 
defendants  were  members  of  an  anarchist  so- 
ciety known  as  the  International  Working  Men's 
Association — some  affiliated  with  one  group  and 

252 


PEOPLE  vs.   SPIES  et  al. 

some  with  another.  Fischer  and  Engel  belonged 
to  what  was  known  as  the  Northwest  Side  group ; 
Schwab,  Neebe,  and  Lingg  to  the  North  Side; 
and  Spies,  Fielden,  and  Parsons  to  the  so-called 
American  group.  Each  of  these  groups  or  chap- 
ters had  a  sub-organization  of  a  military  char- 
acter known  as  the  Armed  Section,  in  which  all 
members  having  weapons  were  enrolled. 

The  conditions  of  the  strike  which  began  on 
May  ist  were  then  developed  by  the  testimony  of 
the  witnesses,  and  it  was  soon  shown  that  Spies 
had  been  present  during  a  riot  at  the  McComiick 
factory  which  had  occurred  on  May  3d,  resulting 
in  a  collision  with  the  poHce  and  the  death  of 
several  persons.  A  few  hours  after  this  event, 
Spies  had  written  and  caused  to  be  distributed 
an  inflammatory  circular,  headed  "Revenge!" 
calling  upon  the  people  to  avenge  the  alleged 
murder  of  the  strikers  who  had  fallen  in  the 
fight  with  the  poHce.  No  response  of  any  kind 
followed  the  distribution  of  this  handbill,  which, 
though  declamatory  and  denunciatory,  called  for 
no  particular  action.  It  was  then  proved  that 
two  circulars  had  been  issued  announcing  a  mass- 
meeting  for  the  night  of  May  4th,  one  urging 
working-men  to  come  armed,  and  the  other 
omitting  that  direction,  the  former,   prepared 

253 


DECISIVE   BATTLES   OF  THE   LAW 

by  Fischer  and  Engel,  being  suppressed  in  favor 
of  the  latter  at  the  dictation  of  Spies.  Two 
witnesses  who  had  turned  State's  evidence,  and 
were  themselves  under  indictment  for  murder, 
were  then  called,  and  revealed  a  madhouse  plan 
of  action. 

According  to  these  witnesses,  a  meeting  of  the 
Armed  Sections  had  been  held  on  May  3d,  at 
which  it  had  been  agreed  that  when  the  word 
"  Ruhe"  appeared  in  Spies 's  paper,  Die  Ar better 
Zeitung,  the  members  should  assemble,  provided 
with  dynamite  bombs,  and  distribute  them- 
selves so  as  to  cover  the  various  police  stations. 
''  A  committee  of  observation  "  was  then  to  act 
with  those  men,  and  upon  any  report  of  collisions 
with  the  police  the  conspirators  were  to  hurl 
their  bombs  into  the  station-houses,  and  shoot 
down  all  who  attempted  to  escape.  This  mur- 
derous plan,  according  to  the  eye-witnesses,  orig- 
inated with  Engel,  and  both  he  and  Fischer 
were  active  in  arranging  the  details. 

There  was  much  to  impeach  the  story  told  by 
the  informers,  one  of  whom  had  apparently  made 
suspicious  overtures  to  the  defence.  Under 
skilful  cross-examination  it  was  shown  that  he 
had  confessed  and  retracted  and  reconfessed, 
and  very  little  reliance  would  have  been  placed 

254 


PEOPLE  vs.   SPIES  et  al. 

upon  his  testimony  had  it  not  been  supported 
by  other  proofs.  It  was,  however,  most  signifi- 
cantly corroborated.  The  signal  ''Ruhe"  had 
been  anonymously  sent  to  Die  Arbeiter  for  publi- 
cation, and  the  paper  containing  it  was  admitted 
in  evidence,  together  with  Spies's  written  direc- 
tion to  his  compositor  to  insert  it  in  the  column 
known  as  ''The  Post  Box." 

This  was  the  first  link  in  the  remarkable  chain 
of  exhibits  which  was  to  make  this  case  unique 
in  the  annals  of  criminal  law. 

Another  informer  then  took  the  stand,  and 
testified  that  he  had  aided  the  defendant  Lingg 
to  manufacture  dynamite  bombs  for  the  use  of 
the  Armed  Sections  according  to  the  plan 
previously  agreed  upon,  and  that  early  on  the 
evening  of  May  4th  he  and  Lingg  had  carried  a 
satchel  full  of  the  deadly  missiles  to  a  saloon  fre- 
quented by  their  group,  depositing  it  in  the 
basement  hallway  of  this  resort,  where  any  one 
who  chose  to  do  so  could  enter  and  help  him- 
self. Neither  the  appearance  of  the  man  who 
told  this  tale,  nor  his  record,  nor  his  motives 
entitled  him  to  credence,  but  again  the  exhibits 
spoke  louder  than  any  words,  and  corroborated 
him  beyond  hope  of  contradiction.  These  silent 
witnesses  were  the  materials  and  apparatus  for 

255 


DECISIVE   BATTLES  OF  THE  LAW 

making  bombs  discovered  in  Lingg's  rooms,  the 
fragments  of  the  exploded  bomb,  which  con- 
clusively proved  that  it  was  the  sort  which  Lingg 
had  manufactured,  the  bombs  which  the  witness 
confessed  that  he  and  Lingg  had  secreted  under 
a  sidewalk  where  they  were  located  by  the 
police,  and  a  fuse  and  fulminating  cap  found  in 
the  pocket  of  Fischer's  coat  at  the  time  of  his 
arrest. 

All  the  proof  up  to  this  point,  however,  in- 
volved only  Fischer,  Engel,  Lingg,  and  Neebe, 
and  there  was  very  little  to  connect  the  last- 
named  with  the  case.  Beyond  the  fact  that  he 
was  a  small  stockholder  in  Die  Arbeiter,  of  whose 
property  he  assumed  charge  after  the  arrest  of 
its  editors,  and  that  he  had  distributed  some  of 
the  *'  Revenge  "  circulars,  there  was  no  evidence 
against  him,  and  nothing  further  developed  as 
the  trial  progressed. 

Then  followed  the  history  of  the  Haymarket 
mass-meeting  at  which  Spies,  Parsons,  and 
Fielden  spoke.  All  accounts  agreed  that  the 
meeting  was  orderly,  and  the  speeches,  if  in- 
tended to  inflame  the  audience,  were  ill  adapted 
to  that  end  and  signally  failed  of  their  purpose. 
Even  Fielden's  address,  which  apparently  moved 
the  police  to  interfere,  was  less  violent  than  the 

256 


PEOPLE  vs.   SPIES  et  al 

average  stump-speaker's  harangue,  and  the 
crowd  did  not  seem  to  have  been  excited  by  it. 
Finally  a  witness  named  Gilmer  was  produced, 
who  swore  that  he  had  seen  something  that 
might  have  been  a  bomb  pass  between  Spies, 
Schwab,  and  a  man  named  Schnaubelt,  and  that 
later,  when  Captain  Ward  ordered  the  crowd  to 
disperse,  he  saw  this  man  draw  a  bomb  from  his 
pocket  and  hurl  it  at  the  police  after  Spies  had 
lit  the  fuse. 

Formidable  as  this  testimony  appeared  to  be, 
it  was  badly  shattered  under  cross-examination. 
The  witness,  it  appeared,  had  kept  his  informa- 
tion to  himself  for  several  days  after  the  event, 
during  which  time  the  man  Schnaubelt  was  twice 
arrested  and  discharged,  and  his  whole  story  and 
his  manner  of  telHng  it  indicated  that  he  was  a 
notoriety-seeker  who  had  concocted  the  tale  in 
order  to  attract  public  attention  and  gratify 
his  pitiful  vanity,  if  not  for  mercenary  motives. 
Dozens  of  witnesses  subsequently  took  the  stand 
and  swore  that  he  was  a  notorious  liar  who 
lived  by  his  wits,  and  the  contrary  statements  of 
those  who  were  called  to  support  his  reputation 
for  veracity  were  utterly  unconvincing.  There 
was  some  corroboration  of  this  witness  in  the 
testimony  of  a  man  named  Thompson,  and  the 

257 


DECISIVE   BATTLES  OF  THE   LAW 

disappearance  of  Schnaubelt  and  his  relation- 
ship to  Schwab  were  suspicious  circumstances, 
but  the  proof  fell  far  short  of  the  prosecutor's 
claim  that  he  would  produce  the  actual  assassin, 
whose  identity  has  not  been  satisfactorily  es- 
tablished to  this  day. 

Some  policemen  then  attempted  to  show 
that  Fielden  had  fired  upon  them  from  behind 
the  cart  which  served  as  the  speaker's  plat- 
form after  the  bomb  had  been  thrown,  but 
their  assertions  partially  disproved  themselves, 
and  there  was  an  utter  absence  of  convincing 
confirmation.  In  fact,  none  of  the  oral  testi- 
mony strongly  inculpated  either  Spies,  Schw^ab, 
Fielden,  or  Parsons,  but  before  long  telltale 
exhibits  which  could  not  be  impeached  began 
to  pile  up  against  them. 

For  some  years  Spies  and  Schwab  had  been 
conducting  Die  Arbetter  Zeitung,  and  Parsons 
had  been  editing  The  Alarm,  and  very  close  re- 
lations existed  between  these  two  journals.  In 
the  offices  of  the  first-named  the  police  found 
dynamite  and  dynamite  bombs,  which  were  pro- 
duced and  exhibited  to  the  jury.  Then  red 
flags  and  banners  inscribed  with  incendiary 
mottoes  seized  in  the  same  office  were  carried 
into  court,  and  from  the  editorial  library  came 

258 


PEOPLE  vs.   SPIES  et  al 

Host's  Science  of  Rcvohitionary  Warfare.  The 
admission  of  this  last  exhibit  was  bitterly  op- 
posed by  the  defence,  but  upon  proof  that  the 
book  had  been  advertised  for  sale  by  the  editors, 
and  that  it  had  been  peddled  at  anarchist  fairs 
attended  by  some  of  the  defendants,  it  was  re- 
ceived and  its  diabolical  contents  read  in  full  to 
the  jury.  This,  however,  was  not  the  most 
questionable  ruling  at  the  trial,  for  the  court 
permitted  the  prosecution  to  place  in  evidence 
several  bombs  which  had  been  discovered  by 
the  police  weeks  after  the  crime  and  miles  away 
from  the  scene  of  action,  and  to  exhibit  their 
destructive  qualities  despite  the  fact  that  not 
one  of  them  was  clearly  traced  into  the  posses- 
sion of  the  defendants.  There  has  never  been 
any  satisfactory  defence  of  those  extremely 
dubious  rulings,  but  it  is  very  doubtful  if  they 
affected  the  result,  for  the  most  damaging  evi- 
dence of  the  whole  trial  was  furnished  by  the 
written  words  of  the  prisoners  themselves. 

Copy  after  copy  of  the  Arbeiter  and  the  Alarm 
was  produced,  and  their  articles  and  editorials, 
as  read  to  the  jury,  must  have  convinced  any 
intelligent  body  of  men  of  the  purpose  for  which, 
they  were  written.  Certainly  nothing  could 
have  been  more  injurious  to  Spies,  Schwab,  and 
^8,  259 


DECISIVE   BATTLES  OF  THE  LAW 

Parsons  than  their  editorial  utterances,  which 
included  every  possible  incitement  to  the  use  of 
dynamite  and  the  commission  of  wholesale  mur- 
der. In  the  issue  of  November  27,  1885,  the 
editors  of  the  Arbeiter  made  the  significant  an- 
nouncement that  "  Steel  and  iron  are  not  on  hand, 
hit  tin  two  or  three  inches  in  diameter.  The 
price  is  cheap'' — a  virtual  advertisement  of 
material  for  bombs. 

On  April  8th  the  same  paper  observed:  ''A 
number  of  strikers  at  Quincy  yesterday  fired  upon 
their  bosses  and  not  at  the  scabs.  Tnis  is  recom- 
mended most  emphatically  for  imitation.'' 

On  June  27th  of  the  same  year  Spies  wrote  a 
signed  essay  in  the  Alarm,  explaining  in  detail 
the  preparation  of  dynamite  bombs,  and  closed 
it  with  these  words:  ''It  is  necessary  for  the  rev- 
ohitionist  to  experiment  for  himself.  Especially 
should  he  practise  the  knack  of  throwing  bombs." 

Advice  of  this  nature  appeared  in  almost 
every  issue  of  the  Arbeiter  up  to  the  time  of  the 
outrage,  and  in  the  copy  of  March  15,  1886,  the 
editors  answered  a  suggestive  communication 
signed  ''Seven  Lovers  of  Peace"  as  follows: 
"A  dynamite  cartridge  explodes  not  through  mere 
concussion  when  thrown.  A  concussion-primer 
is  necessary." 

260 


PEOPLE  vs,   SPIES  et  al. 

Indefatigable  as  Spies  and  Schwab  were  in 
the  dissemination  of  such  information  and  advice 
Parsons  was  even  more  active.  In  the  columns 
of  the  Alarm  on  February  21,  1885,  murder  was 
openly  advocated  as  follows:  "Dynamite!  Of 
all  good  stuff  this  is  the  stuff.  Stuff  several 
pounds  of  this  sublime  stuff  into  an  inch  pipe 
(gas  or  water),  plug  up  both  endSy  insert  a  cap 
with  a  fuse  attached,  place  this  in  the  immediate 
vicinity  of  a  lot  of  rich  loafers  who  live  by  the  sweat 
of  other  men's  brows,  and  light  the  fuse.  A  most 
cheerful  and  gratifying  result  will  follow.'' 

Again,  in  another  issue,  this  sentiment  ap- 
peared: ''Nothing  but  the  uprising  of  the  people 
and  a  bursting  open  of  the  stores  .  .  .  and  a  free 
application  of  dynamite  to  every  one  who  opposes 
will  relieve  the  world.  .  .  .  Seeing  the  amount  of 
needless  suffering  about  us,  we  say  a  vigorous 
use  of  dynamite  is  both  human  and  economical.'' 

It  is  not  probable  that  Parsons  himself  wrote 
either  of  those  paragraphs,  but  day  after  day 
he  had  sanctioned  this  policy  in  varying  forms, 
and  on  April  24,  1886,  only  a  short  time  before 
the  Haymarket  meeting,  the  paper  he  edited 
emphasized  it  in  this  fashion:  '' Workingmen 
to  Arms!  War  to  the  palace — peace  to  the  cot- 
tage, and  death  to  luxurious  idleness.  .  .  .  One 

261 


DECISIVE   BATTLES  OF  THE   LAW 

pound  of  dynamite  is  better  than  a  bushel  of 
btdlets.  Make  your  demand  for  eight  hours  with 
weapons  in  your  hands  to  meet  the  capitalistic 
blood-hounds,  police  and  militia,  in  the  proper 
manner.'' 

Not  only  did  these  and  similar  exhortations 
reveal  the  editors'  intentions,  but  their  printed 
and  spoken  words  proved  that  their  only  remedy 
for  grievances  was  terrorism  through  wholesale 
murder  and  violence.  With  the  eight-hour 
strike  or  the  ballot  or  any  similar  effort  on  the 
part  of  working-men  to  better  their  condition 
they  displayed  little  or  no  sympathy.  In  fact, 
they  frankly  declared  their  disbelief  in  such 
methods,  and  it  was  evident  that  their  only  in- 
terest in  the  labor  movement  was  the  chance 
it  afforded  for  collisions  with  the  authorities 
and  the  carrying  out  of  their  desperate  pro- 
gramme. 

This  sort  of  evidence  accumulated  day  after 
day,  until  the  court-room  was  fairly  littered 
with  papers,  and  when  the  prosecution  closed  its 
case  on  July  31st,  the  preaching  if  not  the  prac- 
tice of  the  defendants  had  been  demonstrated 
beyond  any  chance  of  contradiction. 

Confronted  by  this  overwhelming  proof,  the 
cotmsel  for  the  defence  set  valiantly  to  work 

262 


PEOPLE  vs.   SPIES  et  al. 

directing  their  efforts  to  proving  that  neither 
Fischer,  Engel,  Schwab,  Lingg,  nor  Neebe  was  at 
or  near  the  Haymarket  when  the  crime  was  com- 
mitted; that  the  meeting  had  been  orderly,  and 
that  none  of  the  defendants  had  resisted  the 
poHce.  In  all  of  this  they  were  fairly  successful, 
but  the  proofs  did  not  meet  the  issues,  for  the 
presence  or  absence  of  the  defendants  was  not 
material  in  view  of  the  conspiracy  charged.  More- 
over, in  its  issue  of  March  i6,  1885,  the  Arheiter 
gave  specific  advice  on  this  very  point  to  those 
contemplating  a '  'revolutionary  deed. "  "  Whoever 
is  willing  to  execute  a  deed,''  wrote  the  editors, 
''has  to  put  the  question  to  himself  whether  he  is 
able  or  not  to  carry  out  the  action  by  himself.  .  .  . 
//  not,  let  him  look  for  just  as  many  fellows  as  he 
must  have.  Not  one  more  nor  less;  with  these  let 
him  unite  himself  to  a  fighting  group.  .  .  .  Has 
the  deed  been  completed?  Then  the  group  of  ac- 
tion dissolves  at  once  .  .  .  according  to  an  under- 
standing which  must  be  had  beforehand,  leaves 
the  place  of  action,  and  scatters  in  all  directions.'' 
Finally,  Spies,  Fielden,  Schwab,  and  Parsons 
led  a  forlorn  hope  by  taking  the  stand  and  en- 
deavoring to  overcome  the  unfavorable  im- 
pression which  their  writings  and  speeches  had 
created.     But    though    they    stoutly    asserted 

263 


DECISIVE   BATTLES  OF   THE   LAW 

their  innocence  of  any  specific  plot  against  the 
police,  and  denied  all  knowledge  of  the  per- 
petrator of  the  crime,  they  could  not  but  admit 
that  they  had  advocated  similar  deeds  for  years, 
and  the  fact  that  they  disapproved  and  dep- 
recated the  particular  violence  of  the  moment 
was  no  answer  to  the  charge  that  they  had  open- 
ly encouraged  murderous  defiance  of  the  law, 
and  zealously  endeavored  to  commit  other  less 
intelligent  men  to  the  execution  of  their  mad 
designs. 

For  seven  days  the  fight  continued  on  these 
lines,  but  on  August  i  ith,  both  sides  having  rest- 
ed. Assistant  State's- Attorney  Walker  began  to 
sum  up  for  the  prosecution.  During  the  next 
eight  days  the  lawyers  for  the  defence  and  the 
State  alternated  in  addressing  the  jury,  but  here 
again  the  exhibits  spoke  louder  than  any  words, 
for  on  the  table  before  which  Mr.  Ingham  stood 
during  his  summing-up  la}^  bombs  of  all  descrip- 
tions, fulminating  caps,  shells,  melting-ladles, 
and  other  tools  of  the  dynamiter's  trade,  and 
in  plain  sight  of  the  jury  were  the  red  banners 
and  flags  of  the  terrorists  blazing  with  mottoes 
urging  defiance  of  the  law. 

Even  with  such  odds  against  them  the  counsel 
for  the  defence  might  still  have  made  some  im- 

264 


PEOPLE  vs.   SPIES  et  al. 

pression  upon  the  jury  had  they  been  permitted 
to  follow  the  tactics  adopted  by  Mr.  Foster, 
who,  without  attempting  any  defence  of  anarchy 
made  a  dispassionate,  logical,  and  lawyerlike 
argument,  admitting  the  criminal  folly  of  his 
clients*  utterances,  but  insisting  that  there  was 
no  proof  that  any  word  of  theirs,  written  or 
spoken,  had  ever  reached  the  bomb-thrower's 
ears,  or  that  his  monstrous  deed  had  in  any  way 
been  instigated  by  the  defendants.  The  jury 
had  no  right  to  suppose  this  was  so.  The  mere 
fact  that  the  defendants  advocated  violence  was 
not  enough.  For  years  freedom  of  speech  had 
been  flagrantly  abused  without  remonstrance, 
the  license  of  the  press  had  been  permitted  to 
menace  true  liberty  with  impunity,  and  there 
were  other  circumstances  inculpating  the  public 
and  inviting  mitigation  of  severity  towards  the 
accused. 

The  prisoners  themselves,  however,  some  of 
whom  seemed  not  unanxious  to  pose  as  martyrs 
for  the  ''cause,"  hotly  resented  Mr.  Foster's 
plea,  which  resulted  in  his  withdrawal  from  the 
case,  and  they  practically  dictated  the  policy  of 
their  other  counsel.  But  the  public  was  in  no 
mood  for  a  defence  of  terrorism,  and  although 
Messrs.  Zeisler  and  Black  made  admirable  pleas 

265 


DECISIVE   BATTLES  OF  THE   LAW 

along  lines  acceptable  to  their  clients,  the  aud- 
ience was  visibly  unsympathetic,  and  when  Mr. 
Grinnell  replied,  declaring  that  no  one  in  Amer- 
ica was  afraid  of  anarchists,  the  galleries,  which 
had  been  unwisely  opened  to  spectators,  thun- 
dered with  ominous  applause.  This  outbreak 
was  the  only  disturbance  which  marred  the 
dignity  of  the  trial. 

The  judge  then  charged  the  jury,  reciting, 
among  many  other  points,  the  Illinois  statutes 
defining  an  accessory  as  one  who  stands  by  and 
aids  in  the  commission  of  a  crime,  or  who,  not 
being  present,  advises,  encourages,  aids,  or  abets 
in  its  commission,  and  declaring  that  such  ac- 
cessories be  considered  principals  and  punished 
accordingly. 

It  was  late  in  the  afternoon  of  August  19th — 
almost  two  months  after  the  opening  of  the  trial 
— when  the  jury  retired,  and  a  few  hours  later 
it  was  rumored  that  they  had  reached  an  agree- 
ment, and  would  render  a  sealed  verdict  the  next 
morning. 

Under  the  Illinois  law  the  jurors  were  re- 
quired not  only  to  declare  the  guilt  or  innocence 
of  the  accused,  but  to  prescribe  the  penalty  in 
case  of  conviction.  It  was  therefore  in  their 
power  to  acquit  or  to  demand  the  death  penalty 

266 


PEOPLE  vs.   SPIES  et  al 

or  to  punish  the  defendants  with  imprisonment 
for  any  term  of  years  not  less  than  fourteen. 
In  his  closing  address  Mr.  Grinnell  had  not  in- 
voked the  extremity  of  the  law  against  Neebe, 
but  he  had  declared  all  the  others  deserving  of 
death,  and  the  speedy  agreement  of  the  jurors 
was  regarded  as  highly  significant.  The  mo- 
ment they  resumed  their  places  in  front  of  the 
bench  the  foreman  rose  and  handed  a  sealed 
paper  to  the  clerk,  who  opened  it  and  read  as 
follows:  ''We,  the  jury,  find  the  defendants, 
August  S2ies,  Michael ^hwab,  Samuel_Fielden, 

Albert    K Parsons,    Adolph  _Fischer,    George 

Engel,  and  Louis  Lin^g,  guilty  of  murder  in  the 
manner  and  form  charged  in  the  indictment, 
and  fix  the  penalty  at  death.  We  find  the  de- 
fendant Oscar  W.  Neebe  guilty  of  murder  in  the 
manner  and  form  charged  in  the  indictment,  and 
fix   the    penalty    at   imprisonment   for   fifteen 

years." 

No  demonstration  on  the  part  of  the  audience 
greeted  this  announcement,  but  a  roar  of  cheers 
from  the  crowd  gathered  before  the  court-house 
floated  in  through  the  windows,  and  in  the  hush 
that  followed  the  jury  was  solemnly  polled,  each 
juror  signifying  his  individual  concurrence  in 
the  verdict.     Thus  ended  the  first  capital  case 

267 


DECISIVE   BATTLES  OF  THE   LAW 

in  the  United  States  involving  abuse  of  the 
liberty  of  the  press. 

The  fight  for  the  prisoners'  lives  did  not,  how- 
ever, cease  with  the  verdict.  At  the  October 
term  of  the  court,  on  a  motion  for  a  new  trial, 
all  of  the  condemned  made  long  and  some  of 
them  very  able  speeches,  demonstrating  that 
they  were  right-hearted  though  wrong-headed 
men,  and  a  year  later,  after  an  elaborate  argu- 
ment, in  which  Leonard  Swett,  Lincoln's  old 
associate,  appeared  for  the  defence,  the  Supreme 
Court  affirmed  the  verdict,  although  one  of  the 
judges  declared,  however,  that  the  trial  had  not 
been  free  of  legal  error. 

Lingg  then  committed  suicide;  Spies,  Parsons, 
Fischer,  and  Engel  were  executed ;  the  sentences 
of  Schwab  and  Fielden  were  commuted  to  im- 
prisonment for  life,  and  they,  together  with 
Neebe,  were  pardoned,  after  serving  seven  years, 
by  Governor  Altgeld,  whose  action,  bitterly  re- 
sented at  the  time,  has  come  to  be  regarded  as 
a  legitimate  exercise  of  executive  discretion. 


THE    END 


^ 


Ill 


